Don’t Wait for Silver Bullets for Social Media Reform

A framework to protect privacy and promote the “public interest” gives us what we need now: the right start.
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I welcome the thoughtful and lively responses to my article from the five correspondents. In writing “How to Fix Social Media,” I hoped not only to lay out a framework for addressing the social and civic problems that social media has created but also to inspire a productive conversation. Judging from the evidence here, the conversation has begun.

To keep my own reply as brief as possible, I will concentrate on areas of disagreement.

I am sympathetic to many of Senator Josh Hawley’s proposals, including the revamping of antitrust law to prevent information monopolies and the shifting of content-moderation decisions from corporations to individuals. But unless the proposals are accompanied by deep, structural reforms in the way social media operates, they won’t cure the ills that platforms like Facebook, YouTube, and Twitter have caused. Even if you were to split Instagram from Facebook, the two platforms would, absent far-reaching legal and regulatory changes, continue to operate as they always have — with the same consequences.

Some of the senator’s proposals could make matters worse. He suggests that social-media platforms should be interoperable, allowing messages and conversations to cross between them seamlessly. In theory, that makes sense. But without greater controls on content and its circulation, interoperability would end up further accelerating the viral spread of misinformation, rage, and stupidity. Crazy theories on TikTok would leap to YouTube and Instagram even more swiftly than they already do. We would end up with a public square characterized by greater factionalism and emotionalism.

The best way to address the underlying problems, I argue, is to impose strict regulations on personal data use by social media companies while also making the companies accountable to the public. Hawley supports strong data controls, but he bristles at the idea of “an agreed-upon set of institutions and experts that could identify the public interest and arbitrate the inevitable controversies that would arise.” I realize that the phrase “institutions and experts” is a loaded one in today’s fractious political climate, but putting social media under the oversight of regulatory and judicial institutions that are able to draw on a variety of views, expert and otherwise, is exactly what’s needed today. Without such oversight, there will be no accountability.

Libertarians, I noted in the article, find the idea of applying a public interest standard to business activities repugnant, and the Cato Institute’s Paul Matzko proves my point. He expresses surprise that “a conservative journal” would see fit to publish my apparently heretical work. I would remind him that The New Atlantis describes itself as “a nonpartisan publication” committed to publishing articles that “cut across existing political lines.” I admire the journal’s longstanding commitment to pluralistic inquiry, which is essential to understanding the many-faceted role that technology plays in our lives today. Ideological litmus tests are not part of the solution to our challenges; they’re part of the problem.

Matzko is right to remind us of the historical shortcomings of the Federal Communications Commission, notably its early record of discriminatory practices in granting broadcasting licenses. Though the FCC had plenty of company in perpetuating bigotry in the middle years of the last century — media companies were hardly innocent — that doesn’t excuse its faults.

Matzko ignores, however, the bright spots in what he terms, with characteristic overstatement, an “unsavory history.” Fifty years ago, the FCC began concerted efforts to rectify its past mistakes and encourage minority ownership of radio and TV stations. In 1977, the commission established a Minority Ownership Task Force and the following year initiated tax incentives and other programs that led to a fivefold increase in minority ownership of stations over the ensuing two decades. (The tax incentives were repealed by Congress in the deregulation push of the 1990s, leading to an unfortunate falloff in minority ownership.)

Matzko observes that “Americans in the twenty-first century” would view the discriminatory practices of the early broadcasting regulators “as neither democratic nor wise.” But instead of drawing the obvious conclusion — that the public interest standard would be applied in a more enlightened way today than it was eighty years ago — he assumes we’re stuck hopelessly in the past.

This points to a deeper flaw in Matzko’s thinking. His fear of allowing the interests of the public to intrude on private enterprise leads to a cynical, tendentious reading of history. Every public servant is a rat, and the common good is a con man’s ruse. Matzko writes that the public interest standard “was always and inextricably entangled with anti-democratic authoritarianism.” That’s perverse. Political processes will always be vulnerable to corruption — a fact we should never lose sight of — but the story of the public interest standard is, as Rachel Bovard puts it, “the story of America choosing to govern technologies that radically altered the country, instead of being governed by them.” It’s important to remember that the FCC’s actions were always subject to judicial review, and the federal courts, in many rulings over many years, repeatedly ratified the public interest standard as both constitutional and efficacious.

Matzko devotes the bulk of his response to an attack on the fairness doctrine. I briefly recounted the doctrine’s story to illustrate the messiness inherent to political processes, but as Matzko acknowledges, I didn’t defend the doctrine or call for its reinstatement. Although I think his criticism of the doctrine is skewed by his biased reading of history, the criticism is peripheral to my proposal for addressing the problems of social media. I do feel compelled, however, to correct the record on the landmark Red Lion case. Matzko allows his obsession with political intrigue to blind him to the wisdom of the Supreme Court’s unanimous decision in the case. In ruling that it is “the right of the viewing and listening public, and not the right of the broadcasters, which is paramount,” the justices not only upheld the public interest standard, but also made it clear that individuals’ freedom of speech should not be subordinate to the prerogatives of broadcasters.

Antón Barba-Kay contends that the Internet changes everything, rendering historical lessons and precedents useless. That echoes, perhaps inadvertently, the grandiose rhetoric that Silicon Valley has been dispensing since the beginning of the digital age. I’m not buying it.

Barba-Kay notes that people, despite claiming to value privacy, have been handing over personal data to Big Tech companies for years. But that’s not because they’re insincere in saying they desire privacy; it’s because they haven’t had a choice. Left unregulated, social media companies have been able to operate a high-tech extortion ring: Give us your data, or you won’t have a social life. If tight legal controls were imposed on the collection and exploitation of data, people would be able to enjoy the benefits of online socializing while also having their privacy protected. Just as the secrecy-of-correspondence doctrine was transferred successfully from the mail system to the telegraph system to the telephone system, so it can be extended to govern the correspondence and conversation that pulse through Big Tech’s data centers.

Barba-Kay also argues that social media confounds old distinctions between what’s public and what’s private. He’s right, but I’m not convinced that, at a practical level, the situation is as confused as he suggests. Most people using social media know the difference between conversing and broadcasting, and social media companies make tacit or explicit distinctions between the two forms of speech all the time. Most have programs for recruiting and rewarding “influencers” and other popular broadcasters, many tailor different services or features to either public or private speech, and all track measures of traffic and audience that can be used to identify broadcast content. There’s fuzziness, to be sure, but that doesn’t prevent the establishment of different protocols for different forms of speech. People engaged in broadcasting could, for example, be required to provide proof of their identity — a step that would immediately curtail many abuses by both humans and bots — and agree to some basic standards of truthfulness and civility.

But Barba-Kay is right that solving the social-media crisis will be hard. My article is just a starting point. It provides what I believe to be a workable, democratic framework for regulating digital media, but, as Martha Bayles’s students point out, it’s short on details. The good news is that many smart people, from across the political spectrum, have in recent years made specific proposals both for protecting personal data online and for reforming the way social media works. Many of the proposals would fit within the two-pronged framework I describe. That still leaves, of course, the daunting challenge of weaving the ideas into coherent legislation. But if we don’t act, we’ll remain trapped in the current, dysfunctional status quo. Our communications and indeed our culture will continue to be governed by what University of Pennsylvania professor Victor Pickard calls “de facto regulation by oligopolistic markets.” In other words, we’ll be screwed.

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