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Mark Zuckerberg Is Also Part of the Solution

Mark Zuckerberg Is Also Part of the Solution

(Bloomberg Opinion) -- Mark Zuckerberg, Facebook’s chief executive, recently raised a lot of suspicion when he argued for government regulation of his own company and other social media platforms. Some people have been skeptical of his motives, complaining that he is trying to fend off more aggressive regulation or to squelch competition.

But instead of attacking the messenger, we should discuss the message on its merits. Zuckerberg’s argument is an important step in the right direction — one that should produce sustained discussion and eventually legislation.

Heads of companies don’t usually contend that the government should be regulating them. But Zuckerberg rightly noted that if we were starting anew, we would not want private companies to decide, entirely on their own, how to answer the fundamental questions that social media providers are now facing.

Consider the integrity of elections — a problem made most vivid by Russian interference with the 2016 U.S. presidential election.

Should advertisers have to verify their identities before buying political advertisements? And what even counts as a political advertisement? Given the stakes, Zuckerberg thinks that it might be a good idea for regulators to address these questions.

Or consider protection of privacy. The European Union has issued a General Data Protection Regulation, which Zuckerberg seems to like. He thinks that the U.S. and other countries should consider this regulation or some alternative, including “a way to hold companies such as Facebook accountable by imposing sanctions when we make mistakes.”

Then there is the question of what Zuckerberg calls “harmful speech.” Any government should proceed cautiously before regulating speech. But under U.S. law, it is permissible to regulate bribery, criminal solicitation, criminal conspiracy, child pornography and certain kinds of threats. Terrorist recruitment belongs in its own category.

In Zuckerberg’s view, “Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum.” With respect to harmful speech, Zuckerberg emphasizes the importance of transparency on the part of social media providers — and argues for quarterly reporting about what is being done.

Zuckerberg is also interested in the question of data portability. In his view, users should be allowed to move data from one service to another — if that is what they want to do. He argues that so long as it is voluntary, data portability can increase choice and also enable developers, include new entrants, to innovate and compete. 

On all of these questions, Zuckerberg appears to want global rather than national regulation. That might be a good idea, and avoiding inconsistent requirements is certainly in Facebook’s interest. But different nations have different values and traditions, and it is not unreasonable to think that they can legitimately reach different conclusions.

Understandably, Zuckerberg does not highlight antitrust questions, but they are real. It is not at all clear that Facebook should be “broken up” (as Democratic Senator Elizabeth Warren is proposing). But application of antitrust principles to the large social media providers deserves serious attention. Short of breaking companies up, regulators might want to give more careful scrutiny to mergers and acquisitions, and also to arguably anticompetitive practices.

Notwithstanding these points, Zuckerberg’s arguments represent progress, not only in their call for regulation, but also in their identification of specific areas in which regulation is warranted.

The most reckless and disappointing reaction has come from the chief of staff at the Federal Communications Commission, Matthew Berry, who said this on Twitter:

Facebook’s CEO wants the government to regulate the government to more actively regulate Internet speech. No thanks. I prefer the First Amendment.

Everyone should prefer the First Amendment. But as Berry must know, protection of the integrity of democratic elections and of consumer privacy need not run afoul of constitutional principles. Nor is it clear that the government is forbidden to promote data portability. Most “harmful speech” receives constitutional protection — but a lot doesn’t.

Public officials should not wield the First Amendment as a weapon for cutting off public discussion of careful proposals about significant issues.

Instead of doing that, we should focus on responsible next steps. One or more enterprising members of Congress might introduce draft legislation, building on Zuckerberg’s proposals, with particular focus on electoral integrity (arguably the highest priority) and consumer privacy. Appropriate committees might hold hearings, seeking a variety of views from experts on (for example) foreign interference with campaigns, terrorism, privacy and machine learning.

Of particular consequence is the design of the institution responsible for imposing and monitoring any new requirements. The FCC is the natural home for any regulation here. But Berry’s dismissive reaction suggests that creation of a new commission, specifically designed to oversee social media, ought to be considered.

If policymakers do not embrace Mark Zuckerberg’s particular proposals, then they should improve on them and suggest others, rather than dismissing them out of hand. The issues here are urgent and important. They deserve attention now rather than later.

Disclosure: In the past, I have served as an occasional consultant to Facebook, though not on the issues discussed in this column.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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