Mozelle Thompson on Governance

Photo: Andrew Feinberg, CC BY 2.0.

Last week, I had the opportunity to talk to Mozelle Thompson at an event organised by QUT IPKCE and the IIA. Mozelle was a US Federal Trade Commissioner, and is now a legal adviser to Facebook.

Mozelle had some interesting things to say about Facebook's privacy policies, including that he had recently spoken to a convention of Australian police officers and reinforced Facebook's pledge to only cooperate with law enforcement if it's demands were backed by valid legal procedure (ie., warrants and judicial oversight).

”[Facebook is] not here to provide people who want to spy the process for a fishing expedition.”

Interestingly, he also mentioned that Facebook would not comply with authorities if it believed the local laws to be too onerous:

”[…] if we think that that legal process is overbroad or inappropriate we will not enforce it.”

Mozelle also had some statistics about Facebook's adoption and growth. Without going into the details, Facebook is becoming enormous, everywhere. This raises some interesting questions. It is slowly becoming difficult to organise and participate in events if you're not a member of Facebook. Indeed, a large proportion of the people at Mozelle's talk heard about it only through Facebook. Both social and professional networking appears to be migrating to Facebook and (perhaps to a lesser extent) similar platforms. Anecdotally, it appears that it is not uncommon for a friendship group to organise themselves almost exclusively through Facebook. This means that people are becoming increasingly reliant on Facebook and other proprietary platforms for the organisation of their social life, and, to my mind, this raises the question of what responsibilities do Facebook and such other platforms have to their users?

The first thing to point to is Facebook's Terms of Use, which could charitably be described as oppressive. Significantly, they contain a clause which allows unilateral termination:

The Company may terminate your membership, delete your profile and any content or information that you have posted on the Site or through any Platform Application and/or prohibit you from using or accessing the Service or the Site or any Platform Application (or any portion, aspect or feature of the Service or the Site or any Platform Application) for any reason, or no reason, at any time in its sole discretion, with or without notice[.]

So, I asked Mozelle whether there were any applicable limits to Facebook's discretion in the way it treats its users. His answer was a very emphatic 'no'. Mozelle highlighted that it doesn't make good business sense to treat your customers poorly, and that the market provides essential safeguards for the interests of users. The problem with this argument is fairly simply stated: (a) there are few alternatives to facebook; (b) network effects inhibit exit and impose barriers to entry to new players; and © even if the market were efficient, it reduces important issues of rights and interests to a market rhetoric and provides little to no protection for the interests of minority groups.

When I pressed Mozelle about non-market limitations, he forcefully rejected the suggestion that Facebook's discretion could be limited. By differentiating Facebook from public utilities, Mozelle argued that the public (government) had no right to interfere in the way in which Facebook was run. Unlike public utilities, Facebook receives no public funding and operates in a competitive market. I asked for clarification on this point, because the market certainly doesn't seem competitive. Mozelle, who was a Federal antitrust lawyer, answered that you couldn't definte the market as narrowly as 'a market for social networking websites', and, accordingly, Facebook didn't have market power.

Competition law aside, there is a significant problem with the false dichotomy presented by Mozelle Thompson. It is simply not true that either an entity is a public utility, in which case it is regulated, or it is a private proprietary corporation, in which case it is not. We impose limits on the behaviour of private entities all the time. There is no reason that we cannot alter the boundaries of private property and the apportionment of liability and responsibility in any given case, and the proper location of these boundaries is exactly the discussion we need to be having.

I pointed Mozelle to the example of Sara Andrews, who was threatened with banning from World of Warcraft by Blizzard after she advertised for a LGBT-friendly guild. Mozelle distinguished World of Warcraft from Facebook based upon the subscription fee which WoW gamers pay. The gist of the argument was that by paying $15/mo, WoW subscribers had a right to complain to Blizzard about the way they are treated. Facebook users, on the other hand, pay nothing, and therefore have no such rights.

This is very dangerous thinking. Firstly, Facebook users, in aggregate, provide almost all of the value of the Facebook company. The technical platform represents some intiial investment, but it is the social network which provides the real driving force (and advertising revenue). If we focus only on subscription models, we are able to say that there is no consideration paid by Facebook users, and hence no contractual remedies. On the other hand, if we recognise the value that participants provide, this assumption may no longer hold.

More importantly, I believe that a valid contractual relationship is not the only source of liability that platforms like Facebook may be exposed to. There are any number of non-contractual arguments which could be raised, including, most significantly, negligence, estoppel, and unjust enrichment. It may be that Facebook owes its users a duty of care not to arbitrarily or maliciously remove them, for example. Alternatively, it may be that Facebook's oppressive Terms of Use are not adequately reflected in the internal community norms, and Facebook may be estopped from enforcing those terms as written in a particular case.

We need to stop talking in terms of clear dichotomies between private and public spaces. These private networks are providing functions which were public in nature when we drew the boundaries we know – which explains why there are constitutionally protected remedies against the State when it prevents you from associating with your social network in public. In no way does this fact preclude us from determining the appropriate level of responsibility that proprietors will owe to individuals in the future.

It may well be that we will decide not to impose liability on facebook for arbitrarily or maliciously ejecting its customers, but this result is by no means certain. By presenting these issues as a clear dichotomy between private and public, we are ignoring the malleability of legal rules and forestalling a proper debate on the rights and responsibilities of actors in our networked society. We are also ignoring the very real harms that individuals may suffer at the hands of platform owners like Facebook, and it is certainly time open up this debate. In this debate, the reification of property-based arguments will only slow us down.