Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. This is a special bonus episode, a mini episode about some breaking news. This week, Facebook's oversight board decided the most important case in its short life, what to do about Donald Trump's temporary suspension from the platform, which had been announced by Facebook in the aftermath of the January sixth attack on the Capitol. The story mattered to me because, as some listeners will know, I've been deeply involved with the oversight board, proposing it to Facebook in the first place and advising the company on its creation. In fact, I still advise Facebook on free speech and free expression related issues. So when it comes to the oversight board, I'm the very opposite of an objective observer. I am an observer who's deeply bound up in the institution, the process, and I care a lot about this decision, and let me tell you, it was fascinating and strange to see the decision of that institution plastered on the front pages of the newspapers. After consultation with my terrific team of producers here at Deep Background, we decided that it might be useful to do a special mini episode on the Oversight Board decision. And I'm going to tell you, just from my own perspective, three different aspects of what you should think or what you might wish to think about the Oversight Board decision. What I'm going to do is break my comments into three parts. First, what did the Oversight Board actually do? And as you'll hear, the answer is pretty different from what the headlines have said. Second, what is likely to happen next in the coming months? And last, but very much not least, why this matters or may matter in the big picture. First, what did the Oversight Board actually do? There is some confusion around this because the very first thing the Oversight Board said in its opinion was the slightest little bit misleading. The Oversight Board began by saying that it was upholding Facebook's decision in the aftermath of the January sixth attack on the Capitol to take Donald Trump off the surface. And yet when you went on to read the fine print, the Oversight Board went on to say that Facebook's subsequent deep platforming of Donald Trump for an indefinite length of time was wrong, standardless and unjustified, as a consequence. The first thing the newspapers reported was Oversight Board upholds Facebook, Yet they could just as easily have said as their headline, the Oversight Board told Facebook that it was not justified in suspending Trump from its service. So what was the Oversight Board in fact saying when you drill down, Well, what it said is that the decision to block the content that Trump posted during and in the process of the attack on the Capitol was the right thing for Facebook to do because Donald Trump's words, the Oversight Board believed were contributing to ongoing harm, including violence with respect to the attack on the Capitol. Therefore, said the Oversight Board, it was appropriate to take down that content. But the board then went on to say that when Facebook chooses to take down content, it doesn't ordinarily go on to remove the user from the platform. Instead, Facebook has a range of things that it can do, which included just taking down the content or temporarily freezing the person's account too has posted that content, or under some circumstances, actually d platforming the person. What Facebook had never done before, according to the Oversight Board, was announced an indefinite suspension, which was neither labeled as a mechanism to prevent future harm, nor as a punishment for explicit violations by Trump of rules of the platform that can get you d platformed. In essence, what the board was saying was that Facebook needs to go back to the drawing board. It needs to clarify and specify what its rules are going to be going forward for taking people off the platform, then to see if those rules which it has to state, explain and announce would apply to Donald Trump. Once it reaches that conclusion, if it's clearly stated rules don't apply to Trump, Trump has to be put back on the platform. If it says that its rules do qualify for permanent removal of Trump, then it could take Trump off the platform. And Trump, of course, would then have the opportunity to go back to the oversight board and ask for it to review the issue again. Whether it would listen to his case or not is uncertain, but it seems probable that it would given the great importance of the issue. You probably noticed that a lot of this decision therefore depends on what Facebook does in the next six months, and you might also be wondering, And the truth is, I'm wondering about this a little bit too, how do the Oversight Board decide to give Facebook six months to figure out what it was going to do next. So let's turn to that six month period. And here's why that six month period matters so much. Some observers of this decision have said that the Oversight Board punted the question of what to do about Donald Trump back to Facebook, and in a sense that is correct, acting in a manner not unlike what many actual Supreme courts or constitutional courts would do. The Oversight Board declined to say, here, Facebook, are the rules which you must follow when the time comes to decide whether to kick somebody off the platform. The Oversight Board saw its role as doing oversight, not as specifying policy. So there is a punt or a return of this issue back to Facebook insofar as the Oversight Board was telling Facebook, you have to write the policy, We're not going to do it for you. That said, the Oversight Board gave substantial guidance to Facebook with respect to what that new policy should look like. When Facebook now goes to rewrite its policies, it will go into the details of what the Board suggested. And although the Board did not say that Facebook had to listen to these principles. The strong implication was that if Facebook made a decision that violated the principles that the board laid out, the board might well overturn Facebook's policies the next time around. What was good for Trump is that the oversight Board made it very clear that Facebook, in deciding whether someone like Trump can be permanently deplatformed, has to look at whether his presence on the platform would cause significant imminent that means immediate harm. Here's the money quote. Facebook must assess whether reinstating mister Trump's accounts would pose a serious risk of inciting imminent discrimination, violence, or other lawless action. In other words, Facebook can't just say we don't like Donald Trump, we think Donald Trump's lousy, or even we think Donald Trump is in general dangerous. They have to create rules according to which a removal of Trump would be conditioned on this serious risk of inciting discrimination, violence, or lawless action. That's good for Trumps now that he's no longer president of the United States, and now that he's not commanding a mob that's about to attack the capital. It would not be that easy for Facebook to show that putting him back on the platform would insight imminent violence or lawlessness. What's less good for Trump is that, in describing what Facebook should do over the next six months, the Oversight board also seemed to suggest that Facebook should require Trump to back down from some of the spurious claims about election fraud being made. Here's the money quote here. Facebook should, for example, be satisfied that mister Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January six And in the real world we all know it doesn't seem very likely that Donald Trump, who responded to the oversight board decision with a loud statement of rejection in which he referred to himself as the president of the United States, is very likely to take steps like that. In any case, what Facebook is now going to have to do is engage in an internal process of figuring out how to state rules that will be designed to justify and explain whatever they decide to do about Trump. That internal process will involve those people within Facebook who make content policy rules, and they will have to figure out how to apply those rules in a public way. They will not only cover Donald Trump, but will also cover anybody else whom they wish to take off the service. The Oversight Board made it very clear in its decision that Facebook cannot have one rule for Trump and another rule for every other government leader. It also strongly implied that Facebook should not have different rules for public figures who influence a lot of people than it does for regular users. Regardless, the Oversight Board was very concerned that Facebook pay attention to the potential dangers and harms posed by users and explain the connection between those harms and any decision to d platform the person. We may not know much publicly about how Facebook undergoes this process right away, but the good news is, under the board's guidance and oversight, Facebook will have to explain clearly and publicly what its rules are, and will have to show how those rules operate. That brings us to the grand question of whether any of this matters. It may not surprise you to hear that I think it matters a lot, and for several reasons. First is the fact that the Oversight Board actually did its job. That is to say, it operated it in such a way as to render a decision that neither rubber stamped what Facebook had done nor fully versed what it had done. Instead, the Oversight Board did oversight. That is, it held Facebook to account by saying that Facebook had an obligation to follow rules and principles that would be made public in the realm of free expression. On its own, Facebook had not clarified publicly exactly why Trump was removed. It had acted in a somewhat let's figure out what to do under these circumstances ad hoc manner, and the Oversight Board told Facebook it just couldn't get away with that. Yet. The Oversight Board also was unwilling to shoulder all of the responsibility for telling Facebook exactly what it should do in the future. It wanted Facebook to take on board its own responsibility for getting it right, and that seems to be exactly what oversight should be about. Second, the Oversight Board decision was treated by news organizations throughout the world the way a decision by an actual Supreme Court would probably be treated. It wasn't just discussed, It was analyzed, poured over, evaluated, argued about, and indeed also much anticipated when it came down. The fact that the world seems to have treated the Oversight Board's decision as a real decision suggests that the institution may have passed its first major test of legitimacy. Sure it will be criticized, and indeed criticized harshly by supporters of Donald Trump, and it may also be criticized by people who think that the board didn't go far enough in telling Facebook exactly what to do. But those are the kinds of criticisms to which real world courts are subject all the time. It's therefore very important that this decision was made, was discussed, was analyzed, because it suggests that a possible future direction for the way important decisions like this are going to be made is in dialogue between Facebook and its oversight board. Some people might prefer that there not be a dialog, that the oversight board just speak and the conversation be finished, but that's not how real world courts operate, and that's probably not how the oversight board is going to operate for now. Instead, to engage in oversight, it's going to have to participate in an ongoing process of dialogue. Last, but not least, one of the crucial reasons for the creation of the oversight board in the future was the sense that the most important decisions about free expression on social media are too big to be made solely by the people who run the company. The oversight board told Facebook's leadership, we don't like how you made this decision, go back and do it again. Facebook will then have to make a new decision, and that decision, too is subject to being reviewed finally by the board. In other words, there will be a sharing of ultimate responsibility for decision making. That sharing is, at least, in my view, a step in the right direction away from a world where the about free expression are made by the CEOs of platforms, with no option for recourse and no independent review by any third party body. Everything that I've just said to you is subject to revision and review as time develops and as the story continues. And just to remind you, none of it comes from my objective analysis. It all comes from my own connection to and care about this nascent institution. That said, I will say, I'm pretty proud today of what the oversight board did. I don't know that I would have written the opinion the way the oversight board did. I don't know that I would have given Facebook six months in order to make this decision. I might have thought it could do it in a substantially shorter amount of time. I might have explained why six months was the amount of time that was being chosen as opposed to just suggesting it as a reasonable amount of time in which Facebook could act, But those are nothing but little quibbles. In the end, this institu Juan acted as an oversight body and gave feedback to Facebook, and Facebook is going to have to listen, and that, for once, seems to be a small step forward in the world of regulation and ethics in the context of big tech. I'll be back to you soon with a full episode. In the meantime, have a terrific week, stay safe and be well. Deep background is brought to you by Pushkin Industries. Our producer is Mo laboord our engineer is Martin Gonzalez, and our shore runner is Sophie Crane mckibbon. Editorial support from noahm Osband. Theme music by Luis Skara at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia Jean Cott, Heather Fain, Carl mcgliori, Maggie Taylor, Eric Sander, and Jacob Weissberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to bloomberg dot com slash podcasts, and if you liked what you heard today, please write a review or tell a friend. This is deep background

Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. This is a special bonus episode, a mini episode about some breaking news. This week, Facebook's oversight board decided the most important case in its short life, what to do about Donald Trump's temporary suspension from the platform, which had been announced by Facebook in the aftermath of the January sixth attack on the Capitol. The story mattered to me because, as some listeners will know, I've been deeply involved with the oversight board, proposing it to Facebook in the first place and advising the company on its creation. In fact, I still advise Facebook on free speech and free expression related issues. So when it comes to the oversight board, I'm the very opposite of an objective observer. I am an observer who's deeply bound up in the institution, the process, and I care a lot about this decision, and let me tell you, it was fascinating and strange to see the decision of that institution plastered on the front pages of the newspapers. After consultation with my terrific team of producers here at Deep Background, we decided that it might be useful to do a special mini episode on the Oversight Board decision. And I'm going to tell you, just from my own perspective, three different aspects of what you should think or what you might wish to think about the Oversight Board decision. What I'm going to do is break my comments into three parts. First, what did the Oversight Board actually do? And as you'll hear, the answer is pretty different from what the headlines have said. Second, what is likely to happen next in the coming months? And last, but very much not least, why this matters or may matter in the big picture. First, what did the Oversight Board actually do? There is some confusion around this because the very first thing the Oversight Board said in its opinion was the slightest little bit misleading. The Oversight Board began by saying that it was upholding Facebook's decision in the aftermath of the January sixth attack on the Capitol to take Donald Trump off the surface. And yet when you went on to read the fine print, the Oversight Board went on to say that Facebook's subsequent deep platforming of Donald Trump for an indefinite length of time was wrong, standardless and unjustified, as a consequence. The first thing the newspapers reported was Oversight Board upholds Facebook, Yet they could just as easily have said as their headline, the Oversight Board told Facebook that it was not justified in suspending Trump from its service. So what was the Oversight Board in fact saying when you drill down, Well, what it said is that the decision to block the content that Trump posted during and in the process of the attack on the Capitol was the right thing for Facebook to do because Donald Trump's words, the Oversight Board believed were contributing to ongoing harm, including violence with respect to the attack on the Capitol. Therefore, said the Oversight Board, it was appropriate to take down that content. But the board then went on to say that when Facebook chooses to take down content, it doesn't ordinarily go on to remove the user from the platform. Instead, Facebook has a range of things that it can do, which included just taking down the content or temporarily freezing the person's account too has posted that content, or under some circumstances, actually d platforming the person. What Facebook had never done before, according to the Oversight Board, was announced an indefinite suspension, which was neither labeled as a mechanism to prevent future harm, nor as a punishment for explicit violations by Trump of rules of the platform that can get you d platformed. In essence, what the board was saying was that Facebook needs to go back to the drawing board. It needs to clarify and specify what its rules are going to be going forward for taking people off the platform, then to see if those rules which it has to state, explain and announce would apply to Donald Trump. Once it reaches that conclusion, if it's clearly stated rules don't apply to Trump, Trump has to be put back on the platform. If it says that its rules do qualify for permanent removal of Trump, then it could take Trump off the platform. And Trump, of course, would then have the opportunity to go back to the oversight board and ask for it to review the issue again. Whether it would listen to his case or not is uncertain, but it seems probable that it would given the great importance of the issue. You probably noticed that a lot of this decision therefore depends on what Facebook does in the next six months, and you might also be wondering, And the truth is, I'm wondering about this a little bit too, how do the Oversight Board decide to give Facebook six months to figure out what it was going to do next. So let's turn to that six month period. And here's why that six month period matters so much. Some observers of this decision have said that the Oversight Board punted the question of what to do about Donald Trump back to Facebook, and in a sense that is correct, acting in a manner not unlike what many actual Supreme courts or constitutional courts would do. The Oversight Board declined to say, here, Facebook, are the rules which you must follow when the time comes to decide whether to kick somebody off the platform. The Oversight Board saw its role as doing oversight, not as specifying policy. So there is a punt or a return of this issue back to Facebook insofar as the Oversight Board was telling Facebook, you have to write the policy, We're not going to do it for you. That said, the Oversight Board gave substantial guidance to Facebook with respect to what that new policy should look like. When Facebook now goes to rewrite its policies, it will go into the details of what the Board suggested. And although the Board did not say that Facebook had to listen to these principles. The strong implication was that if Facebook made a decision that violated the principles that the board laid out, the board might well overturn Facebook's policies the next time around. What was good for Trump is that the oversight Board made it very clear that Facebook, in deciding whether someone like Trump can be permanently deplatformed, has to look at whether his presence on the platform would cause significant imminent that means immediate harm. Here's the money quote. Facebook must assess whether reinstating mister Trump's accounts would pose a serious risk of inciting imminent discrimination, violence, or other lawless action. In other words, Facebook can't just say we don't like Donald Trump, we think Donald Trump's lousy, or even we think Donald Trump is in general dangerous. They have to create rules according to which a removal of Trump would be conditioned on this serious risk of inciting discrimination, violence, or lawless action. That's good for Trumps now that he's no longer president of the United States, and now that he's not commanding a mob that's about to attack the capital. It would not be that easy for Facebook to show that putting him back on the platform would insight imminent violence or lawlessness. What's less good for Trump is that, in describing what Facebook should do over the next six months, the Oversight board also seemed to suggest that Facebook should require Trump to back down from some of the spurious claims about election fraud being made. Here's the money quote here. Facebook should, for example, be satisfied that mister Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January six And in the real world we all know it doesn't seem very likely that Donald Trump, who responded to the oversight board decision with a loud statement of rejection in which he referred to himself as the president of the United States, is very likely to take steps like that. In any case, what Facebook is now going to have to do is engage in an internal process of figuring out how to state rules that will be designed to justify and explain whatever they decide to do about Trump. That internal process will involve those people within Facebook who make content policy rules, and they will have to figure out how to apply those rules in a public way. They will not only cover Donald Trump, but will also cover anybody else whom they wish to take off the service. The Oversight Board made it very clear in its decision that Facebook cannot have one rule for Trump and another rule for every other government leader. It also strongly implied that Facebook should not have different rules for public figures who influence a lot of people than it does for regular users. Regardless, the Oversight Board was very concerned that Facebook pay attention to the potential dangers and harms posed by users and explain the connection between those harms and any decision to d platform the person. We may not know much publicly about how Facebook undergoes this process right away, but the good news is, under the board's guidance and oversight, Facebook will have to explain clearly and publicly what its rules are, and will have to show how those rules operate. That brings us to the grand question of whether any of this matters. It may not surprise you to hear that I think it matters a lot, and for several reasons. First is the fact that the Oversight Board actually did its job. That is to say, it operated it in such a way as to render a decision that neither rubber stamped what Facebook had done nor fully versed what it had done. Instead, the Oversight Board did oversight. That is, it held Facebook to account by saying that Facebook had an obligation to follow rules and principles that would be made public in the realm of free expression. On its own, Facebook had not clarified publicly exactly why Trump was removed. It had acted in a somewhat let's figure out what to do under these circumstances ad hoc manner, and the Oversight Board told Facebook it just couldn't get away with that. Yet. The Oversight Board also was unwilling to shoulder all of the responsibility for telling Facebook exactly what it should do in the future. It wanted Facebook to take on board its own responsibility for getting it right, and that seems to be exactly what oversight should be about. Second, the Oversight Board decision was treated by news organizations throughout the world the way a decision by an actual Supreme Court would probably be treated. It wasn't just discussed, It was analyzed, poured over, evaluated, argued about, and indeed also much anticipated when it came down. The fact that the world seems to have treated the Oversight Board's decision as a real decision suggests that the institution may have passed its first major test of legitimacy. Sure it will be criticized, and indeed criticized harshly by supporters of Donald Trump, and it may also be criticized by people who think that the board didn't go far enough in telling Facebook exactly what to do. But those are the kinds of criticisms to which real world courts are subject all the time. It's therefore very important that this decision was made, was discussed, was analyzed, because it suggests that a possible future direction for the way important decisions like this are going to be made is in dialogue between Facebook and its oversight board. Some people might prefer that there not be a dialog, that the oversight board just speak and the conversation be finished, but that's not how real world courts operate, and that's probably not how the oversight board is going to operate for now. Instead, to engage in oversight, it's going to have to participate in an ongoing process of dialogue. Last, but not least, one of the crucial reasons for the creation of the oversight board in the future was the sense that the most important decisions about free expression on social media are too big to be made solely by the people who run the company. The oversight board told Facebook's leadership, we don't like how you made this decision, go back and do it again. Facebook will then have to make a new decision, and that decision, too is subject to being reviewed finally by the board. In other words, there will be a sharing of ultimate responsibility for decision making. That sharing is, at least, in my view, a step in the right direction away from a world where the about free expression are made by the CEOs of platforms, with no option for recourse and no independent review by any third party body. Everything that I've just said to you is subject to revision and review as time develops and as the story continues. And just to remind you, none of it comes from my objective analysis. It all comes from my own connection to and care about this nascent institution. That said, I will say, I'm pretty proud today of what the oversight board did. I don't know that I would have written the opinion the way the oversight board did. I don't know that I would have given Facebook six months in order to make this decision. I might have thought it could do it in a substantially shorter amount of time. I might have explained why six months was the amount of time that was being chosen as opposed to just suggesting it as a reasonable amount of time in which Facebook could act, But those are nothing but little quibbles. In the end, this institu Juan acted as an oversight body and gave feedback to Facebook, and Facebook is going to have to listen, and that, for once, seems to be a small step forward in the world of regulation and ethics in the context of big tech. I'll be back to you soon with a full episode. In the meantime, have a terrific week, stay safe and be well. Deep background is brought to you by Pushkin Industries. Our producer is Mo laboord our engineer is Martin Gonzalez, and our shore runner is Sophie Crane mckibbon. Editorial support from noahm Osband. Theme music by Luis Skara at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia Jean Cott, Heather Fain, Carl mcgliori, Maggie Taylor, Eric Sander, and Jacob Weissberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to bloomberg dot com slash podcasts, and if you liked what you heard today, please write a review or tell a friend. This is deep background