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Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show

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Speaker 1: where we explore the stories behind the stories in the news.

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Speaker 1: I'm Noah Feldman. This is a special bonus episode, a

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Speaker 1: mini episode about some breaking news. This week, Facebook's oversight

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Speaker 1: board decided the most important case in its short life,

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Speaker 1: what to do about Donald Trump's temporary suspension from the platform,

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Speaker 1: which had been announced by Facebook in the aftermath of

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Speaker 1: the January sixth attack on the Capitol. The story mattered

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Speaker 1: to me because, as some listeners will know, I've been

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Speaker 1: deeply involved with the oversight board, proposing it to Facebook

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Speaker 1: in the first place and advising the company on its creation.

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Speaker 1: In fact, I still advise Facebook on free speech and

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Speaker 1: free expression related issues. So when it comes to the

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Speaker 1: oversight board, I'm the very opposite of an objective observer.

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Speaker 1: I am an observer who's deeply bound up in the institution,

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Speaker 1: the process, and I care a lot about this decision,

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Speaker 1: and let me tell you, it was fascinating and strange

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Speaker 1: to see the decision of that institution plastered on the

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Speaker 1: front pages of the newspapers. After consultation with my terrific

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Speaker 1: team of producers here at Deep Background, we decided that

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Speaker 1: it might be useful to do a special mini episode

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Speaker 1: on the Oversight Board decision. And I'm going to tell you,

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Speaker 1: just from my own perspective, three different aspects of what

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Speaker 1: you should think or what you might wish to think

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Speaker 1: about the Oversight Board decision. What I'm going to do

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Speaker 1: is break my comments into three parts. First, what did

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Speaker 1: the Oversight Board actually do? And as you'll hear, the

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Speaker 1: answer is pretty different from what the headlines have said. Second,

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Speaker 1: what is likely to happen next in the coming months?

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Speaker 1: And last, but very much not least, why this matters

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Speaker 1: or may matter in the big picture. First, what did

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Speaker 1: the Oversight Board actually do? There is some confusion around

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Speaker 1: this because the very first thing the Oversight Board said

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Speaker 1: in its opinion was the slightest little bit misleading. The

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Speaker 1: Oversight Board began by saying that it was upholding Facebook's

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Speaker 1: decision in the aftermath of the January sixth attack on

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Speaker 1: the Capitol to take Donald Trump off the surface. And

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Speaker 1: yet when you went on to read the fine print,

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Speaker 1: the Oversight Board went on to say that Facebook's subsequent

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Speaker 1: deep platforming of Donald Trump for an indefinite length of

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Speaker 1: time was wrong, standardless and unjustified, as a consequence. The

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Speaker 1: first thing the newspapers reported was Oversight Board upholds Facebook,

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Speaker 1: Yet they could just as easily have said as their headline,

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Speaker 1: the Oversight Board told Facebook that it was not justified

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Speaker 1: in suspending Trump from its service. So what was the

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Speaker 1: Oversight Board in fact saying when you drill down, Well,

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Speaker 1: what it said is that the decision to block the

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Speaker 1: content that Trump posted during and in the process of

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Speaker 1: the attack on the Capitol was the right thing for

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Speaker 1: Facebook to do because Donald Trump's words, the Oversight Board

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Speaker 1: believed were contributing to ongoing harm, including violence with respect

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Speaker 1: to the attack on the Capitol. Therefore, said the Oversight Board,

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Speaker 1: it was appropriate to take down that content. But the

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Speaker 1: board then went on to say that when Facebook chooses

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Speaker 1: to take down content, it doesn't ordinarily go on to

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Speaker 1: remove the user from the platform. Instead, Facebook has a

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Speaker 1: range of things that it can do, which included just

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Speaker 1: taking down the content or temporarily freezing the person's account

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Speaker 1: too has posted that content, or under some circumstances, actually

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Speaker 1: d platforming the person. What Facebook had never done before,

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Speaker 1: according to the Oversight Board, was announced an indefinite suspension,

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Speaker 1: which was neither labeled as a mechanism to prevent future harm,

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Speaker 1: nor as a punishment for explicit violations by Trump of

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Speaker 1: rules of the platform that can get you d platformed.

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Speaker 1: In essence, what the board was saying was that Facebook

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Speaker 1: needs to go back to the drawing board. It needs

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Speaker 1: to clarify and specify what its rules are going to

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Speaker 1: be going forward for taking people off the platform, then

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Speaker 1: to see if those rules which it has to state,

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Speaker 1: explain and announce would apply to Donald Trump. Once it

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Speaker 1: reaches that conclusion, if it's clearly stated rules don't apply

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Speaker 1: to Trump, Trump has to be put back on the platform.

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Speaker 1: If it says that its rules do qualify for permanent

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Speaker 1: removal of Trump, then it could take Trump off the platform.

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Speaker 1: And Trump, of course, would then have the opportunity to

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Speaker 1: go back to the oversight board and ask for it

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Speaker 1: to review the issue again. Whether it would listen to

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Speaker 1: his case or not is uncertain, but it seems probable

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Speaker 1: that it would given the great importance of the issue.

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Speaker 1: You probably noticed that a lot of this decision therefore

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Speaker 1: depends on what Facebook does in the next six months,

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Speaker 1: and you might also be wondering, And the truth is,

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Speaker 1: I'm wondering about this a little bit too, how do

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Speaker 1: the Oversight Board decide to give Facebook six months to

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Speaker 1: figure out what it was going to do next. So

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Speaker 1: let's turn to that six month period. And here's why

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Speaker 1: that six month period matters so much. Some observers of

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Speaker 1: this decision have said that the Oversight Board punted the

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Speaker 1: question of what to do about Donald Trump back to Facebook,

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Speaker 1: and in a sense that is correct, acting in a

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Speaker 1: manner not unlike what many actual Supreme courts or constitutional

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Speaker 1: courts would do. The Oversight Board declined to say, here, Facebook,

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Speaker 1: are the rules which you must follow when the time

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Speaker 1: comes to decide whether to kick somebody off the platform.

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Speaker 1: The Oversight Board saw its role as doing oversight, not

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Speaker 1: as specifying policy. So there is a punt or a

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Speaker 1: return of this issue back to Facebook insofar as the

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Speaker 1: Oversight Board was telling Facebook, you have to write the policy,

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Speaker 1: We're not going to do it for you. That said,

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Speaker 1: the Oversight Board gave substantial guidance to Facebook with respect

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Speaker 1: to what that new policy should look like. When Facebook

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Speaker 1: now goes to rewrite its policies, it will go into

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Speaker 1: the details of what the Board suggested. And although the

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Speaker 1: Board did not say that Facebook had to listen to

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Speaker 1: these principles. The strong implication was that if Facebook made

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Speaker 1: a decision that violated the principles that the board laid out,

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Speaker 1: the board might well overturn Facebook's policies the next time around.

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Speaker 1: What was good for Trump is that the oversight Board

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Speaker 1: made it very clear that Facebook, in deciding whether someone

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Speaker 1: like Trump can be permanently deplatformed, has to look at

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Speaker 1: whether his presence on the platform would cause significant imminent

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Speaker 1: that means immediate harm. Here's the money quote. Facebook must

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Speaker 1: assess whether reinstating mister Trump's accounts would pose a serious

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Speaker 1: risk of inciting imminent discrimination, violence, or other lawless action.

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Speaker 1: In other words, Facebook can't just say we don't like

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Speaker 1: Donald Trump, we think Donald Trump's lousy, or even we

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Speaker 1: think Donald Trump is in general dangerous. They have to

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Speaker 1: create rules according to which a removal of Trump would

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Speaker 1: be conditioned on this serious risk of inciting discrimination, violence,

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Speaker 1: or lawless action. That's good for Trumps now that he's

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Speaker 1: no longer president of the United States, and now that

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Speaker 1: he's not commanding a mob that's about to attack the capital.

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Speaker 1: It would not be that easy for Facebook to show

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Speaker 1: that putting him back on the platform would insight imminent

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Speaker 1: violence or lawlessness. What's less good for Trump is that,

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Speaker 1: in describing what Facebook should do over the next six months,

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Speaker 1: the Oversight board also seemed to suggest that Facebook should

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Speaker 1: require Trump to back down from some of the spurious

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Speaker 1: claims about election fraud being made. Here's the money quote here.

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Speaker 1: Facebook should, for example, be satisfied that mister Trump has

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Speaker 1: ceased making unfounded claims about election fraud in the manner

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Speaker 1: that justified suspension on January six And in the real

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Speaker 1: world we all know it doesn't seem very likely that

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Speaker 1: Donald Trump, who responded to the oversight board decision with

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Speaker 1: a loud statement of rejection in which he referred to

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Speaker 1: himself as the president of the United States, is very

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Speaker 1: likely to take steps like that. In any case, what

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Speaker 1: Facebook is now going to have to do is engage

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Speaker 1: in an internal process of figuring out how to state

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Speaker 1: rules that will be designed to justify and explain whatever

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Speaker 1: they decide to do about Trump. That internal process will

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Speaker 1: involve those people within Facebook who make content policy rules,

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Speaker 1: and they will have to figure out how to apply

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Speaker 1: those rules in a public way. They will not only

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Speaker 1: cover Donald Trump, but will also cover anybody else whom

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Speaker 1: they wish to take off the service. The Oversight Board

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Speaker 1: made it very clear in its decision that Facebook cannot

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Speaker 1: have one rule for Trump and another rule for every

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Speaker 1: other government leader. It also strongly implied that Facebook should

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Speaker 1: not have different rules for public figures who influence a

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Speaker 1: lot of people than it does for regular users. Regardless,

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Speaker 1: the Oversight Board was very concerned that Facebook pay attention

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Speaker 1: to the potential dangers and harms posed by users and

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Speaker 1: explain the connection between those harms and any decision to

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Speaker 1: d platform the person. We may not know much publicly

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Speaker 1: about how Facebook undergoes this process right away, but the

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Speaker 1: good news is, under the board's guidance and oversight, Facebook

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Speaker 1: will have to explain clearly and publicly what its rules are,

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Speaker 1: and will have to show how those rules operate. That

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Speaker 1: brings us to the grand question of whether any of

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Speaker 1: this matters. It may not surprise you to hear that

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Speaker 1: I think it matters a lot, and for several reasons.

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Speaker 1: First is the fact that the Oversight Board actually did

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Speaker 1: its job. That is to say, it operated it in

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Speaker 1: such a way as to render a decision that neither

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Speaker 1: rubber stamped what Facebook had done nor fully versed what

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Speaker 1: it had done. Instead, the Oversight Board did oversight. That is,

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Speaker 1: it held Facebook to account by saying that Facebook had

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Speaker 1: an obligation to follow rules and principles that would be

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Speaker 1: made public in the realm of free expression. On its own,

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Speaker 1: Facebook had not clarified publicly exactly why Trump was removed.

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Speaker 1: It had acted in a somewhat let's figure out what

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Speaker 1: to do under these circumstances ad hoc manner, and the

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Speaker 1: Oversight Board told Facebook it just couldn't get away with that. Yet.

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Speaker 1: The Oversight Board also was unwilling to shoulder all of

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Speaker 1: the responsibility for telling Facebook exactly what it should do

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Speaker 1: in the future. It wanted Facebook to take on board

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Speaker 1: its own responsibility for getting it right, and that seems

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Speaker 1: to be exactly what oversight should be about. Second, the

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Speaker 1: Oversight Board decision was treated by news organizations throughout the

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Speaker 1: world the way a decision by an actual Supreme Court

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Speaker 1: would probably be treated. It wasn't just discussed, It was analyzed,

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Speaker 1: poured over, evaluated, argued about, and indeed also much anticipated

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Speaker 1: when it came down. The fact that the world seems

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Speaker 1: to have treated the Oversight Board's decision as a real

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Speaker 1: decision suggests that the institution may have passed its first

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Speaker 1: major test of legitimacy. Sure it will be criticized, and

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Speaker 1: indeed criticized harshly by supporters of Donald Trump, and it

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Speaker 1: may also be criticized by people who think that the

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Speaker 1: board didn't go far enough in telling Facebook exactly what

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Speaker 1: to do. But those are the kinds of criticisms to

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Speaker 1: which real world courts are subject all the time. It's

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Speaker 1: therefore very important that this decision was made, was discussed,

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Speaker 1: was analyzed, because it suggests that a possible future direction

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Speaker 1: for the way important decisions like this are going to

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Speaker 1: be made is in dialogue between Facebook and its oversight board.

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Speaker 1: Some people might prefer that there not be a dialog,

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Speaker 1: that the oversight board just speak and the conversation be finished,

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Speaker 1: but that's not how real world courts operate, and that's

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Speaker 1: probably not how the oversight board is going to operate

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Speaker 1: for now. Instead, to engage in oversight, it's going to

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Speaker 1: have to participate in an ongoing process of dialogue. Last,

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Speaker 1: but not least, one of the crucial reasons for the

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Speaker 1: creation of the oversight board in the future was the

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Speaker 1: sense that the most important decisions about free expression on

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Speaker 1: social media are too big to be made solely by

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Speaker 1: the people who run the company. The oversight board told

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Speaker 1: Facebook's leadership, we don't like how you made this decision,

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Speaker 1: go back and do it again. Facebook will then have

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Speaker 1: to make a new decision, and that decision, too is

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Speaker 1: subject to being reviewed finally by the board. In other words,

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Speaker 1: there will be a sharing of ultimate responsibility for decision making.

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Speaker 1: That sharing is, at least, in my view, a step

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Speaker 1: in the right direction away from a world where the

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Speaker 1: about free expression are made by the CEOs of platforms,

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Speaker 1: with no option for recourse and no independent review by

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Speaker 1: any third party body. Everything that I've just said to

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Speaker 1: you is subject to revision and review as time develops

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Speaker 1: and as the story continues. And just to remind you,

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Speaker 1: none of it comes from my objective analysis. It all

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Speaker 1: comes from my own connection to and care about this

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Speaker 1: nascent institution. That said, I will say, I'm pretty proud

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Speaker 1: today of what the oversight board did. I don't know

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Speaker 1: that I would have written the opinion the way the

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Speaker 1: oversight board did. I don't know that I would have

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Speaker 1: given Facebook six months in order to make this decision.

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Speaker 1: I might have thought it could do it in a

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Speaker 1: substantially shorter amount of time. I might have explained why

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Speaker 1: six months was the amount of time that was being

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Speaker 1: chosen as opposed to just suggesting it as a reasonable

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Speaker 1: amount of time in which Facebook could act, But those

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Speaker 1: are nothing but little quibbles. In the end, this institu

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Speaker 1: Juan acted as an oversight body and gave feedback to Facebook,

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Speaker 1: and Facebook is going to have to listen, and that,

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Speaker 1: for once, seems to be a small step forward in

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Speaker 1: the world of regulation and ethics in the context of

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Speaker 1: big tech. I'll be back to you soon with a

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Speaker 1: full episode. In the meantime, have a terrific week, stay

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Speaker 1: safe and be well. Deep background is brought to you

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Speaker 1: by Pushkin Industries. Our producer is Mo laboord our engineer

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00:15:50,036 --> 00:15:53,516
Speaker 1: is Martin Gonzalez, and our shore runner is Sophie Crane mckibbon.

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Speaker 1: Editorial support from noahm Osband. Theme music by Luis Skara

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Speaker 1: at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia Jean Cott,

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Speaker 1: Heather Fain, Carl mcgliori, Maggie Taylor, Eric Sander, and Jacob Weissberg.

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Speaker 1: You can find me on Twitter at Noah R. Feldman.

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Speaker 1: I also write a column for Bloomberg Opinion which you

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Speaker 1: can find at bloomberg dot com slash Feldman. To discover

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Speaker 1: Bloomberg's original slate of podcasts, go to bloomberg dot com

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Speaker 1: slash podcasts, and if you liked what you heard today,

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Speaker 1: please write a review or tell a friend. This is

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Speaker 1: deep background