Creepy? The Real Facebook Risk is to Free Speech

There’s an old saying: “If you’re not paying for the service, you’re the product being sold.”

By JOHN C. MOZENA

What He Said:

Senator John Kennedy, R-Louisiana, called for Facebook CEO Mark Zuckerberg to sit down with lawmakers on Capitol Hill to provide insight into just what he knew about Cambridge Analytica’s alleged misuse of data from Facebook’s users. Kennedy told “CBS This Morning” that the harvesting of user data is “getting into the foothills of creepy.”

“I appreciate Mr. Zuckerberg finally saying something and I appreciate his apology but that’s not enough. We need to sit down and visit. I’m not looking to regulate him to death, but I can tell you this, the issue isn’t going away,” said Kennedy. He added, “The issue is not whether Mr. Zuckerberg knew, the issue is whether he should have known. The issue is whether, and I’m not saying they were, whether the company was negligent or reckless, how serious are they taking data protection, how serious are they vetting their advertisers.”

“CBS This Morning,” March 22

What Should Be Said:

In Article I of the U.S. Constitution, the United States Senate isn’t given the power to keep private companies from being “creepy.” And while it’s Facebook being summoned to the Senate for a “visit,” if social media corporations are required to start picking and choosing which political ads are acceptable on their networks then the real potential threat is to free speech and unpopular points of view. Threatening private social media companies into vetting their advertisers in ways governments could not places online free speech at the mercy of politicians who were never meant to have that power.

Yes, Facebook knows a lot about us because of the information we share about ourselves when we use it. Maybe that is “creepy,” in Sen. Kennedy’s phrasing, but the First Amendment doesn’t protect just non-creepy speech. What it does protect is free speech, especially on political and policy matters.

That’s the kind of speech we shouldn’t want corporations required by the government to “protect” us from, since private companies may select favored points of view in ways that government regulators cannot. That’s a company such as Facebook’s right as a private entity, but if they face the threat of being “regulated to death” by lawmakers, what will they do with ads in the future that oppose politicians who have the power to sentence their company to regulatory death row?

Who’s the Customer? Who’s the Product?

There’s an old saying: “If you’re not paying for the service, you’re the product being sold.” Facebook, Google, Twitter and other free online sites generally follow a modern version of the business model behind broadcast television and radio: They provide a service to consumers for free, then sell access to those consumers to the advertisers who are their actual customers. These companies’ actions are regulated by the terms of their contracts with users and advertisers, as well as federal and state consumer protection laws and other regulatory structures such as rules regulating political advertising in general and online political advertising specifically.

Those controlling authorities are already in play, as Facebook is facing a variety of legal consequences over the use of its users’ data by UK-based data marketers Cambridge Analytica during the 2016 presidential campaign. Users and shareholders have sued, state regulators have alleged violations of consumer protection laws and the Federal Trade Commission has opened an investigation, while the Federal Election Commission is being asked to do so. If the company was “negligent or reckless,” in Sen. Kennedy’s phrasing, this is how that will be determined —  not in a “visit” by the company’s CEO with the U.S. Senate.

Free Speech, Free Websites

If “good cases make for bad law,” the case of Russian meddling in the 2016 election may make for especially bad laws and regulations at a time when online free speech is both in its infancy and under regular attack.

In 2017, the Supreme Court struck down a North Carolina law banning registered sex offenders from accessing social media sites such as Facebook, saying the blanket ban “prevents users from engaging in the legitimate exercise of First Amendment rights.” Justice Anthony Kennedy noted the fragility of free speech protections online in his majority opinion, writing, “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

Others are less cautious. For example, one proposal floated in Congressional testimony after the 2016 election was to ban online political advertising by organizations that do not publish their donor lists. While the rationale was to avoid secret foreign interference in elections, the practical result would be to drastically limit anonymous online political speech. It also would limit support in general for controversial or unpopular causes if donors knew their support would be a matter of public record for their employers, family, friends or neighbors.

This kind of threat is real, and has been recognized by courts going back to the landmark Supreme Court case on this topic, NAACP vs. Alabama, in which the justices stopped Jim Crow-era Alabama state government officials from trying to get a copy of the NAACP’s donor list to use in targeting harassment and threats against supporters of civil rights reforms. But while courts might not let governments require such information, would the same protections apply to Facebook or other social media companies if they were asked to require such disclosures to advertise on their platforms?

We’ve got plenty of tools with which to control our relationships with Facebook and other online platforms, including simply deleting them from our lives. The true danger is in attempts by politicians and regulators to get those companies to engage in censorship that serves their own interests over free political debate.

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John C. Mozena is a communicator working to spread liberty and free markets. He has been a vice president at a free-market think tank, spent two decades in a variety of private-sector marketing and communications roles and began his career as a newspaper reporter and editor covering health care policy. Follow him on Twitter or visit his website.

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What Should Be Said shows effective ways of communicating freedom principles by using a storytelling approach, taking the moral high ground, and staying hopeful and aspirational. Media, politicians and thought leaders often fail to include the freedom perspective at all by omitting critical facts. Alternatively, when they do make a sincere attempt to sell the freedom philosophy, they often do so with a stale and defensive approach that is missing stories that humanize the dry facts and figures. Here we show examples of how storytelling and emotionally compelling changes in message will make all the difference for those trying to advocate for liberty.

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