Liberty, State Action, and the Facebook News Revolution

-- By AndrewBrickfield - 24 Apr 2018

The Facebook News Revolution: Facebook as Publisher & Gatekeeper

US news organizations are producing a polarized population less open to non-conforming experiences. Many scholars—Cass Sunstein, for example—attribute rising polarization to the internet and social media. A 2017 NBER working paper casts doubt on those claims, finding that polarization increased most among those least likely to use the internet. The paper’s authors—and those reporting the research—attribute the findings to the polarizing effect of traditional media, explaining that most Americans still get their information from cable news. Meanwhile, Professor Bharat N. Anand attributes the polarizing effect of both traditional and social media to a market in which “[c]ompetition in the media . . . fails to internalize the externalities from profitable but sensational coverage. It leads to differentiation and more voices . . . but also to fragmentation, polarization, and less-penetrable filter bubbles.”

This is a bleak picture, but it is poised to get worse. A recent New York Times article profiles Campbell Brown, former journalist, turned TV personality, turned “school choice” activist, turned head of news partnerships at Facebook. Her role is building relationships between Facebook and news publishers. She helps Facebook integrate news content into its products and is working with publishers to create Facebook-exclusive news shows. She also flexes Facebook’s newfound publishing muscle, allegedly telling publishers complaining of lost traffic that she “would give them more traffic if they stopped doing clickbait.”

Days before the Times profile, The Intercept dropped its own Facebook scoop: in 2016 Facebook implemented a tool called “FBLearner Flow,” which rather than “offering advertisers the ability to target people based on demographics and consumer preferences, . . . offers the ability to target them based on how they will behave, what they will buy, and what they will think.” Describing a “loyalty prediction” function, Facebook says “it can comb through its entire user base of over 2 billion individuals and produce millions of people who are ‘at risk’ of jumping ship from one brand to a competitor. . . . who could then be targeted aggressively with advertising that could pre-empt and change their decision entirely.”

Facebook says FBLearner Flow improves “user experience” and “advertising efficiency” while defending its privacy commitment by insisting it does not sell user data (why would it, when hoarding unique data facilitates monopoly rents). That logic holds no weight in the face of Facebook’s news revolution. With Facebook and other man-in-the-middle services ascending the throne of news gatekeeper and traditional publishers seeing their reign end—one publisher described feeling “humiliated” after attending a dinner at Ms. Brown’s residence, where he was “reminded that the power of traditional publishers is waning”—FBLearner Flow is likely to be at work targeting news distributed through Facebook.

Consequences of the Facebook News Revolution: Truthmaking with a Man-in-the-Middle

That use creates problems. At minimum, shareholder interests dictate Facebook will leverage FBLearner Flow to drive clicks by sending users the news it predicts they are ready to read, increasing polarization. But, after the Facebook–Cambridge Analytica partnership, is it speculative to think Facebook might face pressure to target news in certain ways or offer media organizations the ability to target users? Imagine similar technology in China, where social media companies must cooperate with the government. Can dissent spread when would-be dissenters are precisely targeted with countervailing information? The US might see the opposite effect, with well-capitalized interest groups (concentrated firms, political movements, religious organizations) funding news groups that compete to drive wedges whenever Facebook indicates a mark is primed to flip.

Maybe those risks are overstated. “Objective” journalism was a relatively new trend, and as Nietzsche states, “truths are illusions about which one has forgotten that is what they are.” Perhaps tools like FBLearner Flow facilitate a Citizens United-style marketplace of ideas, accelerating the process of truthmaking by identifying when a subject is ready to have truth made. Maybe these tools can produce benefits. Data for Black Lives argues that Facebook should commit data to a public trust to research issues facing black communities. Going further, imagine the benefits of an application that identifies white supremacists wavering on their beliefs then apprises them of a less discriminatory worldview.

Despite those arguments, use of FBLearner Flow—and its progeny—by news gatekeepers requires inspection. First, the most partisan nineteenth century newspaper could neither surveil reading nor deliver content with the precision of FBLearner Flow. Second, Nietzsche is correct that truth is essentially contestable, but accepting a truthmaking process that includes a man-in-the-middle with a thumb on the scale is undesirable. Within a marketplace of ideas, it is impossible to eliminate outsize influence by the powerful, but society should prize a system that produces decentralized truthmaking as much as possible. Allowing a man-in-the-middle with predictive power to distribute news is the antithesis to such a system.

Preserving Liberty After the Facebook News Revolution

How can the US regulate behavior collection and prediction in a way that preserves positive applications while limiting negative effects? Determining that the First Amendment protects unsurveilled reading is a start, but the State Action requirement frustrates application to private firms. Privacy advocates should attack the State Action requirement itself.

Historian Eric Foner argues the State Action requirement reflects misunderstandings of Reconstruction. He endorses the view expressed in Justice Harlan’s dissent in the Civil Rights Cases: “The men who wrote the Fourteenth Amendment intended to empower Congress to ‘do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery.’” This view of the Fourteenth Amendment, along with understanding the First, Fifth, and Ninth Amendments as protecting Liberty from surveilled reading and undue interference in truthmaking, enables Congress and Courts to regulate behavior collection and preserve freedom of thought.

Facing unprecedented power over news distribution and truth creation, this constitutional interpretation is consistent with history and necessary to preserve the fundamental right to Liberty. Moreover, eliminating the State Action requirement lets Congress and Courts address lingering racial discrimination that has proved immune to constitutional remedy. Privacy and antidiscrimination advocates must deconstruct the State Action requirement.

(999 words, excluding subtitles and this parenthetical)

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