FAN 200 (First Amendment News) Sarah C. Haan, “Facebook and the Identity Business”

Sarah C. Haan is an Associate Professor of Law at Washington and Lee School of Law.  Professor Haan writes about corporate political speech and disclosure. Her most recent article is “The Post-Truth First Amendment,” forthcoming in the Indiana Law Journal.

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Facebook revealed in September 2017 that Russian-linked groups had waged a disinformation campaign on its platform to influence the 2016 election. The news caused public outcry and led to a series of self-regulating responses from Facebook and other social media companies.  In a new work-in-progress, I will examine Facebook’s regulation of political speech and, more broadly, what it means for political discourse to be regulated through private ordering by a global, profit-seeking, public company. My conclusions are different from those of some other scholars, in part because I give sharp focus to Facebook as a business actor.

Both before and after the revelation about Russian disinformation, public statements by Facebook spokespeople and its CEO, Mark Zuckerberg, have invoked a commitment to “basic principles of free speech.”  Here is a recent example:

This tweet suggests that Facebook seeks to uphold “basic principles of free speech.” The company’s offhand speech is full of such references to “free speech” and “freedom of expression,” but you won’t find those terms in Facebook’s securities filings, its Community Standards, or in the sworn testimony of company executives before Congress. Kate Klonick has argued that to the extent that platforms like Facebook moderate content, they rely on a foundation in American free speech norms. But what, precisely, do Facebook’s executives think that “free speech” means?

Speaker Discrimination

Professor Sarah C. Haan

I will argue that although most scholarly attention has focused on Facebook’s regulation of content, in fact Facebook’s regulation of political speech relies heavily on speaker discrimination. The company regulates content, reluctantly, at the margins; it plainly prefers to regulate identity. It does this by distinguishing between “authentic” and “inauthentic” user identity. Facebook allows speakers to post nearly anything if they present an “authentic” identity, but completely prohibits the speech of “inauthentic” speakers. As Sheryl Sandberg has admitted publicly, virtually none of the offending Russian content would have violated Facebook’s rules if it had been published by an “authentic” speaker.

Facebook explains:

Authenticity is the cornerstone of our community. We believe that people are more accountable for their statements and actions when they use their authentic identities. That’s why we require people to connect on Facebook using the name they go by in everyday life.

There might be another reason, too.

Facebook’s business model focuses on the sale of advertising. Although the company describes its “mission” differently, its business purpose is to profit from selling ads. It is this business model that justifies a preference for regulating identity over content.

Facebook needs to know who its users are for at least two reasons. First, it needs to be able to tell an advertiser how many unique individuals its advertising can reach. Thus, under Facebook’s rules, it is a violation to create multiple accounts or to share accounts, ensuring that each human user has just one account.

Second, Facebook needs to know who you are so that its customization and microtargeting features will work. Those features set Facebook apart from its competitors and justify its ad revenue. This explains why, for example, the company refuses to prohibit false content (“fake news”), yet prohibits the use of a “false date of birth” as an aspect of identity.  As part of your expressive identity, you may feelyounger than you are, but Facebook prohibits you from actually identifyingas a younger person. Your Facebook identity is what distinguishes you from other ad targets.

The public may have wrongly concluded that Facebook’s authentic/inauthentic rules were designed specifically for the purpose of culling foreign propagandists from its platform. This is not so. Since it went public in 2012—long before Russian agents sought to influence the 2016 election—the company’s filings with the U.S. Securities and Exchange Commission consistently have discussed “authentic identity” as a business policy linked to user metrics. Facebook’s business risks associated with user identity go well beyond concerns about electoral integrity.

Mark Zuckerberg

When Facebook determines that a speaker is “inauthentic,” it shuts down the speaker’s account, removes all traces of its speech from Facebook, and prevents the speaker from engaging in future speech on Facebook.

On May 22, Mark Zuckerberg testified to the European Parliamentthat Facebook shut down about 580 million fake accounts in the first quarter of 2018—nearly six million fake accounts per day. Perhaps the scale of foreign electoral interference around the world is so vast that only algorithmic identity licensing can save us.  I am skeptical.

Two additional things are worth noting about Facebook’s identity-based speech regime.

Identity Verification

First, since April, Facebook has doubled down on identity policing, employing identity licensing in a way that, I will argue, is a form of prior restraint. Under new rules, which are already shaping political discourse about the 2018 midterm elections, an individual in the U.S. who wants to use Facebook’s paid tools to communicate about “national issues of public importance” must verify his or her identity ex anteby submitting private information, such as passport, driver’s license and Social Security information, to the company for approval. In a second step, Facebook mails a special code to the individual at a physical address in the U.S., and this must be input into the verification system to confirm that Facebook has that person’s working address.

In May, Facebook clarified that it would apply its identity verification rules to all publishers of paid content, including news publishers. In other words, news outlets that use Facebook’s paid tools to boost content must go through identity verification, and must also label the content with a “paid for by” label. This, of course, represents a clear break between Facebook’s notion of “free speech” and recognized press freedoms in the First Amendment canon. Global media groups have called on Facebook to exempt news publishers from the new rules, but Facebook has so far refused. The company’s speaker discrimination does not go so far as to discriminate between the press and other speakers, even though our Constitution takes this for granted.

In the past few years, Facebook has acquired a number of companies that specialize in biometric identity verification technology, suggesting that Facebook is at least leaving open the possibility of pursuing identity verification as a stand-alone product or feature.  The tech industry press occasionally suggests that Facebook’s end game may be to monetize identity itself. In other words, Facebook’s choice to regulate political speech primarily through identity licensing and verification may be driven, not by “free speech” or democracy concerns at all, but rather by its desire to pursue identity verification as a business opportunity.

No More Pseudonyms

Second, Facebook’s authentic/inauthentic identity rules conflate two important types of identity—false identity and anonymous identity—treating them identically because this is convenient for Facebook’s business. False identity means pretending to be someone you’re not. The Mueller Indictment alleged that Russian actors adopted false identity on Facebook and other social media platforms in order to trick people into thinking they were U.S. citizens. If true, this was a crime.

Anonymous identity is something else. Americans have traditionally used anonymous speech to express unpopular political views; The Federalist Papers, for example, were originally published by Alexander Hamilton, John Jay, and James Madison under a pseudonym, Publius. Had they attempted such a trick in 2018 on Facebook, the company would have faulted them for “inauthentic behavior” and restricted their speech. Facebook’s choice to prohibit speech, including political speech, from individuals who choose anonymity (but do not claim false identities) represents another important break between the company’s concept of “free speech” and the First Amendment’s.

Although Silicon Valley tech companies often embody a libertarian spirit—and Facebook’s resistance to policing content or to distinguishing between the press and other speakers seems consistent with that view—the company’s decision to prohibit both false identity and anonymous identity is decidedly notlibertarian. The libertarian view is that speech should be evaluated purely on its merits. A regulatory regime that must authorize your identity before it lets you speak shares little in common with a philosophy that emphasizes freedom and individuality.

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In Citizens United v. FEC, the Supreme Court observed that speaker-based distinctions are often a form of content control. It asserted that the State may not “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” Although scholars were quick to point out that Justice Kennedy’s opinion overstated the First Amendment’s hostility to speaker-based discrimination, these two points resonate when we consider how Facebook is regulating political discourse primarily through identity.  In my view, the issues don’t come fully into focus until we consider Facebook’s business motives.

Even if Facebook eventually loses ground to other speech-regulating competitors, these issues of private ordering are not going away.

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