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Commentary

Facebook Caught Between Roles As Civility Cop, First-Amendment Facilitator

Facebook founder Mark Zuckerberg
Facebook founder Mark Zuckerberg
By Catherine A. Fitzpatrick
The recent controversy surrounding the Facebook group "Everybody Draw Muhammad Day" raised many questions about how the Palo Alto-based company is governing the online exchanges of some 400 million users around the world from many diverse cultures and countries, particularly when members seem to be violating the company's own terms of service against hate speech.

Facebook members have generated some 620 million groups, according to allfacebook.com, which cites Google's indexing.

Yet Facebook has developed a reputation for tolerating hate groups bashing Jews as well as Muslims, seeming to remove antigay groups faster than they do antireligious groups, and accepting at face value the complaints of abusive governments who get their sympathizers to get legitimate opposition groups removed as alleged violators of Facebook's terms.

 

These impressions of the social media giant are essentially generated by whatever mainstream media a group can get to cover its cause, as the company itself never talks about how it enforces its policies.

Facebook's Terms of Service (TOS), which have undergone many changes under constant pressure from users unhappy with various restrictions, have retained the basic bans on incitement of hate common to all Internet sites in the United States: "You will not post content that is hateful, threatening, or pornographic, or incites violence” and  “you will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.”

'Police Informants'

Yet like all online communities sheltering under the notion of the "Good Samaritan" interpretation of the 1996 Communications Decency Act and other laws on common carriers, Facebook management maintains that they are not responsible for third-party communications disseminated on their service. Despite the enormous technical capacity it possesses to pitch personalized friending options and demographically sensitive ads, Facebook says it cannot effectively police the speech of 400 million users around the world.

So like all online social media companies, Facebook falls back on the notion that users themselves have to file an abuse report in order to have a group considered for removal, creating a kind of "police informants" climate that can work with wild unfairness or effectiveness, depending on your issue.

Demonstrators shout slogans and wave placards as they protest against Facebook in Lahore, Pakistan, on May 26.

While Facebook's founder, Mark Zuckerberg, has often described his global sharing invention as a kind of country, even a massive community of people capable of acting in concert for good causes, unlike a real country Facebook has no democratically elected government nor any separation of powers or institutionalized checks and balances. Like all online services maintained by private companies, Facebook does not have to explain itself when it comes to questions about how its TOS is formulated and enforced.

Facebook never publicizes the complaints it receives about hate groups nor reports on how it acts on them. Often groups are removed by creators themselves under peer pressure and not by the company itself. There is no "police blotter" in this global village letting the public know what sort of complaints have come in -- nor whether they are legitimate.

Without that sort of transparency, it is all too easy for disgruntled governments in power to move against oppositions using Facebook, as apparently happened in Hong Kong before elections and before the Summer Olympics in Beijing.

'Difficult Decision'

Anti-Semitic and Holocaust denial groups have been common on Facebook, and the company seemed impervious to cries to have them removed. Last year, much like the current controversy over anti-Muslim groups, some Facebook users complained about two groups in particular -- "Holocaust: A Series of Lies" and "Holocaust is a Holohoax." In a widely read post, "Jew Haters Welcome At Facebook, As Long as They Aren't Lactating," popular tech blogger Michael Arrington marveled that Facebook used its own search technology to delete pictures of breast-feeding babies as indecent, but let Holocaust denial groups remain.

Despite Arrington’s highly publicized protest, Facebook did not immediately act.

"It's a difficult decision to make. We have a lot of internal debate and we bring in experts to talk about it," Facebook executive Barry Schnitt told CNN in May 2009. "Just being offensive or objectionable doesn't get it taken off Facebook. We want [the site] to be a place where people can discuss all kinds of ideas, including controversial ones."

Ultimately, it took litigation to have the groups removed.

Facebook is perceived by many to have moved faster to take down antigay hate groups, but it may have been because they were lobbied hard by numerous groups in the Lesbian Gay Bi-Sexual Transgender (LGBT) community to do so, and Facebook relies on multiple user complaints to make decisions.

How To Apply It Online

Groups trying to campaign for civility have a hard time in the U.S. context. The First Amendment applies only to the government and not to private companies, and they are not required to enforce free speech or its regulation. To be sure, there are limits on the First Amendment in various Supreme Court rulings such as Brandenberg v. Ohio (1969), which held that only "incitement to imminent lawless action" can be punishable by law. This notion has increasingly been tested by hate crimes such as cross-burning and threats against abortion doctors made online, and judges have developed a concept of “true threats” in ruling that certain violent speech is not protected. Yet they continue to struggle with how to apply it online where the imminence is not always clear.

Facebook executives seem to hide behind their users in these cases, claiming they need to receive abuse reports -- and sometimes they seem to let prosecutors take action before they will. For example, in Lithuania earlier this month two antigay groups were created to protest against the Baltic Pride gay parade in Vilnius. The Lithuanian Center for Human Rights brought the groups to the attention of authorities, as Article 170 of the Lithuanian Criminal Code provides for punishment of incitement of hatred or discrimination based on sexual orientation. They disappeared.

British police also recently investigated a Facebook campaign said to incite race hatred before the World Cup in South Africa in June, joined by 15,000 members said to be opposing whites, allegedly supporters of Julius Malema, youth wing head of President Jacob Zuma's African National Congress Party. The group was closed.

But while private companies in the United States are free to set any sort of speech code or membership criteria they wish, as exempt from the First Amendment, they resist becoming too specific and too active on policing speech; freedom of association essentially trumps outside efforts to impose civility as well as freedom of speech itself. In a case titled Boy Scouts of America v. Dale, the judges established that private groups can exclude whom they want, including gays.

Human rights advocates wish that Facebook would use its status of exemption from the First Amendment to enforce tolerance rules free of fear of litigation. The danger of that approach is that it strengthens the corporation rather than the constitution as the regulator of speech, and enables companies to act as arbitrarily as they like, depending on the personal beliefs of investors or executives.

Function As Local Governments

Government regulation of social media, much like television, radio, and video games, would help to enforce the First Amendment when it is violated by the companies themselves in suppressing criticism of their own actions, compelling them to be more transparent about what kind of complaints they get and how they handle them. Such an approach may also help enforce statutes against online bullying and stalking, making them criminal offenses as they would be offline.

A key consideration for policy-makers looking at modern application of the First Amendment since the boom in online social media is whether or not companies providing social media services function as local governments of sorts. In the landmark case of Marsh v. Alabama (1946), a Jehovah's Witness was permitted to distribute leaflets on a town's sidewalk even though it was owned by a private corporation. Yet the Silicon Valley titans have been able to elude such an analogy with "corporate towns" with the 2009 case of Estavillo v. Sony, when a user sued the PS3 gaming network for expelling him on free-speech grounds. The judge said the network “does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms."

Increasingly, with people moving online to engage not only in the surfing of news and entertainment sites but interacting intensively on social media web pages and engaging with others on their cell phones with such services, the civic space is no longer in the town square or the town hall but in a virtual commons run by various private corporations with arbitrary TOS. The First Amendment no longer has a functional space in which to operate on public streets and in public squares in the real world.

Lawmakers must realize that the public square is now largely online and now mainly controlled by private companies -- companies that resist any regulation as an interference in their own right to publish. Yet ultimately, the mounting complaints of users about the inflaming of hatred that characterizes online life, as well as the platform providers’ secrecy and impunity for their inaction, will compel lawmakers to regulate social media as they have long done with broadcast media, movies, and video games, both to enforce freedom of speech as much as to prevent incitement of violence.

Catherine A. Fitzpatrick is a freelance writer specializing in human rights in Eurasia and the author of a blog on the OSCE. The views expressed in this commentary are the author's own and do not necessarily reflect those of RFE/RL.

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by: Michael Lorrey from: Burbank, CA
May 31, 2010 04:40
What is amusing here is that Catherine A Fitzpatrick, for all her posing on this site about promoting "civil society" is one of the most uncivil people when she is writing online. Under the virtual guise of "Prokofy Neva" she blatantly accuses innocent people of heinous crimes without a shred of evidence, she uses offensive language to describe them and to talk to them, she uses her blog to spread lies about her competitors, and she stalks other virtual world users to real life, harassing their employers and academic administrations in order to damage their careers. She likes to hold faux "public meetings" on virtual property she controls, so she can rant her false claims, and then ban anybody who objects to her accusations. She then files abuse reports against those she bans, claiming they were "griefing" her.
In this column she is seeking government regulation of speech online, yet the virtual world she is most known to be associated with, has banned her from several of their forums for her uncivil behavior, which has accomplished nothing in teaching her to moderate her behavior. As a result of her long and unrepentant behavior toward others, she has earned the nickname "the crazy cat lady". The title is apt. She is the most uncivil person I have ever experienced online in the 20 years I've been using the internet, and is most certainly NOT the person who should be lecturing us here about what should and should not be regulated.

by: Catherine Fitzpatrick from: New York
May 31, 2010 17:08
I see Michael Lorrey, AKA Intlibber Brautigan, who is permanently banned from Second Life, is stalking me again, although he himself is one of the big boosters of the application of Marsh v. Alabama. I've been compelled to keep rebuttals going on a blog to address his recurring preposterous claims about me (http://bit.ly/2EZ0UR, http://bit.ly/d91BvA), which began some years ago when I expressed skepticism about his theory that the U.S. government was engaging in psychiatric experiments on people in virtual worlds.

Indeed I do write critically about social media like Facebook and virtual worlds like Second Life. I'm one of the few challengers of the extremists of the opensource software movement and "Free Culture" and also among a minority of critics of Creative Commons and Wikipedia, such as far more famous writers like Andrew Keen who is dubbed the "anti-christ of Silicon Valley," and thoughtful philosophers like Internet pioneer Jaron Lanier.

I'm very interested in raising the issue of how to enforce the First Amendment along with gaining more protection from cyberbullying precisely because I've experienced both suppression of legitimate criticism by software companies who would never get away with such behaviour in other sectors and been targeted by unhinged, usually anonymous people obsessing online whose stalking places a chill on freedom of expression as well. One of Lorrey's persistently strange ideas (along with accusing me falsely of working for the CIA) is that my modest rentals business was a competition to his failed land baron empire and that I criticized his antics in Second Life for this reason. But t there are literally thousands of rental businesses these days in SL and much competition.

For 3 years, as a persistent critic of both opensource extremism and communism. I was harassed by a group of students at a California commuter college named Woodbury University roleplaying a Soviet Empire, who crashed my simulators, but in time, after filing enough abuse reports against such behaviour, which is viewed not as "free speech" but as cyberbullying and even a misdemeanor when it reaches the threshold of destruction of property and disruption of public events, Linden Lab, maker of SL, permanently banned about 30 of them. When Lorrey claims falsely that I "harassed employers and academic administrations in order to damage their careers," he's referring merely to several e-mails I sent to the administration of Woodbury University urging them to investigate constant harassment of me and other SL users by their students, messages which in fact they acted upon. If you cause a denial-of-service attack on other people's websites yet continue to claim this is about being an "edu punk" and "virtualist artist" and claim you are immune from actions to protect other people's rights, eventually your antics will catch up with you,. The debate that ensued about this can be viewed (http://bit.ly/dsIpPR), and is an interesting one for the patient reader willing to look past the inside baseball.

In the five years I've been a member of Second Life, I spent from 2005-2008 banned from the company's official forums because I criticized Linden Lab for what I alleged was a policy of favouritism whereby some users or "residents" were given special privileges, business deals under non-disclosure agreements, perks, and immunity from prosecution under the TOS for their harassment of other users. Eventually, the management changed and the company grew more mature and less thin-skinned and I was restored to the posting privileges on the corporate blog comments and the forums where I continue to post today, although I still remain banned from the public JIRA, which is the system for reporting bugs and exploits and suggesting features, where the opensource extremists still hold sway.

As I often have to explain in such interchanges, I don't like cats.

by: Catherine Fitzpatrick from: New York
May 31, 2010 17:25
Interestingly, Facebook management has now apologized to Pakistan for the "blasphemy" and the government has restored Facebook access:

http://news.yahoo.com/s/ap/20100531/ap_on_re_as/as_pakistan_internet_crackdown

"Pakistan lifted a ban on Facebook on Monday after officials from the social networking site apologized for a page deemed offensive to Muslims and removed its contents, a top information technology official said.

The move came almost two weeks after Pakistan imposed the ban amid anger over a page that encouraged users to post images of Islam's Prophet Muhammad. Many Muslims regard depictions of the prophet, even favorable ones, as blasphemous.

"In response to our protest, Facebook has tendered their apology and informed us that all the sacrilegious material has been removed from the URL," said Najibullah Malik, secretary of Pakistan's information technology ministry, referring to the technical term for a Web page."

Similar apologies were not made to the Jewish community over the Holocaust denial and antisemitic groups, some of which were removed after a lawsuit was threatened, and some of which remain. (http://tcrn.ch/bHvWb8, http://bit.ly/Ct8Vc, http://bit.ly/U0MZC)

by: Mike Lorrek from: Burbank, CA
May 31, 2010 18:36
Now Ms. Fitzpatrick is continuing her defamatory libel on a government website. The truth about my own experience in SL is that my SL business imploded after a sustained campaign of defamation by Ms. Fitzpatrick and her allies, sought to drive away my customers. Linden Lab seized all my funds and my sims, accounts and other virtual property. Ms. Fitzpatrick also continues to lie about Woodbury University and her stalking behavior. She emailed the top administrators of the university on a serial basis making unsupported allegations about myself, as well as the professor and students I worked with. Nobody from Woodbury ever crashed her sims. Her idea of "griefing" is when people she doesn't like attend one of these faux "public meetings" she holds to pontificate in a lame attempt to be seen as a wonky and influential person. She has libelled and harassed me for quite a number of years, beginning when I refused to tell her what I was doing to eliminate griefing when she refused to talk about it off the record. She started from that moment attacking me and my company, with absolutely no provocation from myself.
The facts are that she and her ilk try to portray people they dont like online as "e-terrorists" who must be fought with a "War on E-Terrorism" mentality. This strategy is doomed to failure because all this does is make the online virtual environment into a first person shooter type video game for bored young people, and by banning them from engaging in normal online activities, like disenfranchising minority youth in real life, you give them no alternative but to engage in antisocial behavior in order to rebel against your petty fascism.

I was once one of Ms. Fitzpatricks allies and believed in her "war on e-terrorism" pathology, but realized it was a wrong approach. I then changed tactics to treat "griefing" not as 'e-terrorism' but as an issue of juvenile crime, and treated it with the same tactics that communities in real life do to eliminate gang activity. While still allowing for community governance to wield the stick of banning for true bad behavior, I gave young people who had previously been stuck in a perpetual cycle of ban after ban after ban, the opportunity to become relegitimized, gave them safe creative outlets, places they could build without fear of harassment from vigilantes like Ms Fitzpatrick and her spandex clad allies in the JLU, and even employed them to build for me, and encouraged a number of these invididuals to return to school, by attending Woodbury University in real life. Woodbury has played an essential role in eliminating organized griefing in SL.

by: Mike Lorrey from: Burbank, CA
May 31, 2010 18:36

The only people that actually cause Ms. Fitzpatrick trouble in SL are former tenants who she has kicked out of her virtual lands without refunding their rent, other individuals she has defamed and harassed, as well as her own allies in the JLU who use alternate accounts to harass her in order to make her rant ever louder about 'griefing', when in reality, as a result of my efforts, the number of total abuse reports filed in Second Life has gone down by 90% since the peak in 2007 when I changed tactics. Today almost all 'griefing' that happens in SL is generally isolated incidents that are nothing but personal disputes between individuals, romantic spats, neighbor vs neighbor.
One of the main reasons Ms. Fitzpatrick continued to defame and harass Woodbury is that the university owned a sizable parcel of land in one of the simulators she held a majority of the virtual land in. She coveted that land, and figured that by getting woodbury banned, she could get that land at low price at auction.
She is a vicious and corrupt woman who, again, is the most uncivil person I've ever come across in my 20 years on the internet. That she is now drawing a government website into her campaign of defamation libel and harassment means I will have to be contacting my senators and congressmen about how this government agency employs such toxic, cancerous personalities.

by: Catherine Fitzpatrick from: New York NY
June 01, 2010 19:26
Mike Lorrey continues his unhinged assaults on my articles wherever they appear, and on my reputation, apparently in a vain bid to distract from his troubles caused by other factors. I can only say that as someone who has repeatedly and wildly threatened me with libel cases for years, without any grounds whatsoever, Lorrey apparently has never been able to get a case going, mindful that in the U.S., there is the "truth defense," and the threshold is high for showing "malicious" intent and for loss of livlihood to a judge.

I've never attacked Lorry's business or maintained any kind of "campaign of defamation" -- this is hallucination. I have no relationship whatsoever to him and his customers. His business failed for reasons that have nothing to do with me, and his simulators were properly confiscated by the virtual world company Linden Lab, to whom he owed large bills.

The record shows that I properly and rightly filed both abuse reports to Linden Lab on the harassment by the Woodbury University students, and also properly contacted the administrators 3-4 times, and received polite and prompt responses from them, and in fact in one communication they explained that the people violating the TOS in Second Life with crashing of sims and racist spam attacks were not representing their university. My sims were routinely and deliberately crashed, as was my viewer, by people demonstratively announcing they were indeed from Woodbury University, in their closed invitation-only group, wearing their tags and serving as the inworld student administrators -- a fact that Linden Lab, with server records, was able to establish and ultimately act upon. Coupled with the many other offenses this group committed in this online virtual community, they saw fit to permanently ban the organization, and confiscate their sims, some of which were involved in some kind of business relationship with Lorrey.

While virtual, the online community of Second Life is a fascinating petri dish to follow these kinds of issues of the limits of free speech and the onset of crime. I think the solution is for the First Amendment to apply, and also for all law to apply as it does in real life, where the distinctions between free speech and criminal mischief or "incitement to imminent lawlessness" are indeed applied clearly.

Far from having any "War on Terrorism" mentality, in this virtual world, I don't use security systems, or group-only closed simulators, or retain security personnel, all features of Lorrey's and other rentals in SL. I believe that documenting the facts under the law is a more useful approach, and it does work, albeit more slowly. I don't misportray crime online in any hysterical way, nor do I suppress speech in any facile manner -- I believe that when the aggressive harassment and stalking of certain sub-cultural groups like 4-chan in SL reach the point where they crash simulators, lose people real money (money is not fictional in Second Life), drive away their customers, assault their avatars, constantly incite racism and spew obscenities such as to drive away customers, you are no longer in the realm of free speech, even if online, you are in the realm of criminal mischief and other misdemeanors under various states' Internet or computer laws. All of this has been very clearly documented.

In fact, Lorrey's "alternative sentencing project," if you will, didn't work at all, as after given multiple chances to reform over 3 years, the students kept up their criminal offenses, and were finally permanently banned -- and that's because part of their form of harassment was constantly to freign they were reforming, as if speaking to Office Krupke.

by: Catherine Fitzpatrick from: New York NY
June 01, 2010 19:39
As for these other false allegations, the responses are all well documented on my Second Thoughts blog and are confirmed by other media. I have never refused a refund to any tenant except for a tiny handul of Woodbury University griefers who deliberately and repeatedly attempted to rent cottages on my simulator land as a form of stalking and harassment, so that they were expelled and banned and not given refunds -- which are not required when you are dealing with a set of "tenants" who have repeatedly crashed your sims and driven your customers away by sexual attacks and racism. (In fact, I'm a prominent exception to many rentals businesses in SL that provide no refunds; I enable them automatically).

I have nothing to do with the so-called Justice League Unlimited, which is apparently one of the super-hero groups Lorrey role-played with, and if anything, I have written critically of their harvesting of personal data out of the Second Life systems, and their creation of an elaborate online intelligence-gathering operation that clearly violated the civil rights of other customers, and which ultimately led to and end of their database, when it was exposed, and even to the departure of the employee of Linden Lab with whom they cooperated in sharing intel. Any such third-party data-collection system that seeks to set up its own vigilante service on the Internet is to be thoroughly discouraged; while they can be abusive themselves, the online companies are much more trustworthy in handling confidential customer data. Yet these issues of data privacy and online cyberbullying, which are relevant to Facebook as well, are among the reasons I have sought government regulation -- regulation that would enforce the best of our real-life laws like the First Amendment and prosecution of stalking and systematic harassment, not the worst of our laws or a rewrite of our constitutional freedoms in some new more restricted online setting.

The Woodbury University griefers' group bought or were gifted a 2048 m2 parcel on a simular I once wholly owned, and in conjuction with another member who had a 4096 m2, they launched regular attacks on me and my tenants on a sim where I owned more than 50,000 meters. I didn't "covet" any land, of which I have plenty elsewhere; I just documented abuses of the TOS and reported them, as I believed I had as much right as anyone else to proceed with business without harassment directed at me because of my views critical of communism and opensource extremism -- which ultimately, what this is all about -- an attempt to silence a critic of the ideologies at the root of some communities of online coders who brook no dissent and maliciously hound anyone who crosses them.

I'm not drawing any government website into any campaign; this is merely a guest blog post, among thousands of guest blog posts, and it is meant to spark discussion about online social media and virtual worlds, and I hope it has done that. I would welcome the interest of any senators or congressmen in my writings or anyone else's on the topic of governance in social media and virtual worlds and I'm happy to testify any time as I have considerable experience in this realm.

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