Facebook co-founder: Bust it up -- and start regulating speech online

Chris Hughes has two ideas. One of them seems counterintuitive for a man who helped build Facebook into an empire. The other seems counterintuitive for someone who recently took part in the publishing industry.

Let’s start with the first idea, which is by far the better of the two. Hughes wants the government to enforce anti-trust laws to force Facebook into unwinding acquisitions of competing platforms Instagram and WhatsApp, and more broadly to take a more assertive stand on mergers and acquisitions. Writing in the New York Times, Hughes takes direct aim at his former business partner and college roommate, Mark Zuckerberg:

Mark’s influence is staggering, far beyond that of anyone else in the private sector or in government. He controls three core communications platforms — Facebook, Instagram and WhatsApp — that billions of people use every day. Facebook’s board works more like an advisory committee than an overseer, because Mark controls around 60 percent of voting shares. Mark alone can decide how to configure Facebook’s algorithms to determine what people see in their News Feeds, what privacy settings they can use and even which messages get delivered. He sets the rules for how to distinguish violent and incendiary speech from the merely offensive, and he can choose to shut down a competitor by acquiring, blocking or copying it. …

The government must hold Mark accountable. For too long, lawmakers have marveled at Facebook’s explosive growth and overlooked their responsibility to ensure that Americans are protected and markets are competitive. Any day now, the Federal Trade Commission is expected to impose a $5 billion fine on the company, but that is not enough; nor is Facebook’s offer to appoint some kind of privacy czar. After Mark’s congressional testimony last year, there should have been calls for him to truly reckon with his mistakes. Instead the legislators who questioned him were derided as too old and out of touch to understand how tech works. That’s the impression Mark wanted Americans to have, because it means little will change.

We are a nation with a tradition of reining in monopolies, no matter how well intentioned the leaders of these companies may be. Mark’s power is unprecedented and un-American.

It is time to break up Facebook.

The essay makes for lengthy and fascinating reading, both for Hughes’ complex insights into Zuckerberg and for his regrets over not realizing the dangers inherent in Facebook. It’s impossible to excerpt the arguments here, but to sum up, Hughes makes a compelling case for treating Facebook as a monopoly. Zuckerberg has bought out competition to the extent that it simply no longer exists. The last major launch of a social-media platform took place in 2011, Hughes notes. Facebook launched into a market with healthy competition, but Zuckerberg uses his economic power to keep any market from forming that might compete with Facebook. That’s at least a good case for more forceful FTC intervention, especially regarding Instagram and Whatsapp acquisitions, which arguably should have been blocked in the first place.

So what’s the bad argument? Hughes wants government to regulate speech on social media networks too:

Just breaking up Facebook is not enough. We need a new agency, empowered by Congress to regulate tech companies. Its first mandate should be to protect privacy.

The Europeans have made headway on privacy with the General Data Protection Regulation, a law that guarantees users a minimal level of protection. A landmark privacy bill in the United States should specify exactly what control Americans have over their digital information, require clearer disclosure to users and provide enough flexibility to the agency to exercise effective oversight over time. The agency should also be charged with guaranteeing basic interoperability across platforms.

Finally, the agency should create guidelines for acceptable speech on social media. This idea may seem un-American — we would never stand for a government agency censoring speech. But we already have limits on yelling “fire” in a crowded theater, child pornography, speech intended to provoke violence and false statements to manipulate stock prices. We will have to create similar standards that tech companies can use. These standards should of course be subject to the review of the courts, just as any other limits on speech are. But there is no constitutional right to harass others or live-stream violence.

That idea doesn’t “seem un-American.” It is un-American. It’s so antithetical to the American spirit that the framers of the Constitution made sure to prevent against government regulation of speech in the beginning of the Bill of Rights. It’s astounding that someone who recently owned The New Republic would not grasp the meaning of those words.

Hughes is correct that there is “no constitutional right to harass others,” but those are issues addressed when they occur — not by imposing a government authority to prevent speech before it occurs, otherwise known as “prior restraint.” As far as live-streaming violence, that’s almost entirely a Facebook issue, but even if it wasn’t, what would be the limiting principle? Should we ban witness coverage of a violent event, one that might warn people of danger or provide evidence later to a crime? Should TV news broadcasts carry live video of warfare? The so-called “yell fire in a crowded theater” standard itself only applies if the warning is a hoax, by the way, and is itself not a predicate for prior restraint — only for criminal prosecution afterward.

Besides, these are issues that healthy competition would solve — messily, perhaps, but with far fewer fascist implications than a Ministry Of Social Media Truthiness. The problem with Facebook’s monopoly, as Hughes points out, is that there’s no real accountability. If a healthy market developed in social media, competition would provide that accountability, even if perhaps not to Hughes’ personal tastes.

Hughes should have ended his essay when he quoted Adam Smith: “Competition spurs growth and innovation.” One out of two isn’t too bad, though, and Hughes’ essay up to that point should raise attention to the necessity of ensuring subsidiarity on both government and business. Unless it applies to both, eventually it will apply to neither.