Speaker 1: Pushkin Pushkin from Pushkin Industries. This is deep background to
Speaker 1: show where we explore the stories behind the stories in
Speaker 1: the news. One of the recurring stories is Facebook, and
Speaker 1: particularly criticisms of Facebook that have arisen from a large
Speaker 1: body of material leaked by a whistleblower to the press
Speaker 1: and to Congress. This series of leaks has, of course
Speaker 1: major implications for the company, but it also has implications
Speaker 1: for the Oversight Board associated with Facebook, the independent institution
Speaker 1: that has the job of reviewing the company's most controversial
Speaker 1: content decisions and correcting them if it believes they've gotten
Speaker 1: them wrong. Regular listeners of the podcast know that I'm
Speaker 1: interested in the Oversight Board, but I would take it
Speaker 1: a bit further. I am personally interested in the Oversight Board,
Speaker 1: having been one of the people who helped come up
Speaker 1: with the idea for it in the first place, and
Speaker 1: who worked with Facebook to bring it into reality. For
Speaker 1: full disclosure, I also want listeners to know, if you
Speaker 1: don't already, that I continue to advise Facebook on free
Speaker 1: expression related issues in order to discuss the business of
Speaker 1: the Oversight Board. However, I am not the right person
Speaker 1: to do the talking because I am not on the
Speaker 1: Oversight Board, and the Oversight Board is its own independent
Speaker 1: institution for that purpose. We're very fortunate to be welcomed
Speaker 1: on today's show by Jamal Green. Jamal is the Dwight
Speaker 1: Professor of Law at Columbia Law School. He's an expert
Speaker 1: on constitutional decision making and the author of an important
Speaker 1: book called How Rights Went Wrong. He's one of the
Speaker 1: co chairs of the Oversight Board, in which position he
Speaker 1: has a crucial insider's view of the work of the board,
Speaker 1: its purposes, its functions, its limitations, and the challenges it faces. Jamal,
Speaker 1: thank you so much for being Jamal. Let's start with
Speaker 1: the Oversight Board, of which you're one of the chairs,
Speaker 1: and tell me how you decided to take that job
Speaker 1: when it was offered to oh gosh, when the team
Speaker 1: at Facebook that was making the initial choices reached out
Speaker 1: and kind of explained the idea, it sounded like an
Speaker 1: opportunity both to try to make the world slightly better
Speaker 1: and also something that aligned with my own personal interests
Speaker 1: and my professional interests in One of the things I
Speaker 1: do in my day job is think a lot about
Speaker 1: how to balance and optimize different kinds of rights and
Speaker 1: how to think about how rights interact with different kinds
Speaker 1: of institutions. So it had a professional interest for me,
Speaker 1: and given how important what Facebook does in terms of
Speaker 1: content moderation, is seemed like an opportunity to contribute to
Speaker 1: making the world a little bit better. So that's why
Speaker 1: I decided to do it. And he regrets, No, no regrets. Challenges,
Speaker 1: of course, but I knew there would be challenges, so
Speaker 1: I wouldn't say there are any regrets. No good. I'm
Speaker 1: happy to hear that, since my own involvement with the
Speaker 1: Oversight Board went back to the point where there weren't
Speaker 1: any chairs. In fact, there was only the idea for
Speaker 1: the thing. I want to talk about your work on
Speaker 1: rights and its relationship to some of the themes at
Speaker 1: the Facebook Oversight Board faces. But I want to first
Speaker 1: start with transparency, which is, on the one hand, one
Speaker 1: of the core rationales for the Oversight Board in the
Speaker 1: first place. It exists in some sense to push Facebook
Speaker 1: to be more transparent it's decision making and to make
Speaker 1: its own decisions in a way that is transparent in
Speaker 1: the sense of revealing reasoning and logic. Transparency, though, has
Speaker 1: also been a great challenge for Facebook to put it
Speaker 1: some what overly politely, I mean, the company has been
Speaker 1: very badly buffeted by a whole series of leaks which
Speaker 1: have gone to major newspapers, to Congress, to probably the
Speaker 1: Federal Trade Commission, all of which seem primarily structured, not solely,
Speaker 1: but primarily structure around this idea that the company hasn't
Speaker 1: been transparent enough in aspects of its decision making. So
Speaker 1: I'm wondering what you think the Oversight Board can do
Speaker 1: to push Facebook towards greater transparency that hasn't already been
Speaker 1: done by this leaking process. Well, I think there's a
Speaker 1: couple of different ways in which one can talk about transparency,
Speaker 1: and Facebook has that issue along several dimensions. The first
Speaker 1: thing to say is, you know, we care about transparency
Speaker 1: to the degree that the particular activity touches on lots
Speaker 1: and lots of people in a way that one thinks
Speaker 1: that a company or or institution needs to be held
Speaker 1: accountable in some way. Right, So if Facebook had no
Speaker 1: reach at all, it was just a sort of private
Speaker 1: company making its own decisions, we wouldn't care that much
Speaker 1: about transparency, just as we don't care that much about
Speaker 1: transparency for you know, the person who makes our kids
Speaker 1: toys or something. But it's because Facebook's reach is so
Speaker 1: broad and now in a global sense, so broad and
Speaker 1: touches on a basic social policy when it comes to vaccines,
Speaker 1: or it comes to political elections and all sorts of
Speaker 1: things that Facebook policies can have an impact on. That's
Speaker 1: where the demand for transparency comes in. It's in a
Speaker 1: sense proportional to the reach of the company. And so
Speaker 1: when we say something like Facebook has not been transparent enough,
Speaker 1: I think the right way to understand that is to
Speaker 1: say that its transparency is not on par with its reach.
Speaker 1: And I think that's a legitimate problem for the company.
Speaker 1: We think about leaks, right, A lot of the leaking
Speaker 1: has been related to internal research that Facebook is conducted
Speaker 1: and the degree to which responded to that internal research.
Speaker 1: And that's a certain kind of transparency problem that I
Speaker 1: think the board is not centrally focused on. Although the
Speaker 1: board is certainly interested in what the company's doing. The
Speaker 1: ways in which what the board does can be most
Speaker 1: directly relevant to Facebook's transparency is it makes lots and
Speaker 1: lots of decisions without fully explaining why it's making those decisions. Right, So,
Speaker 1: when it comes to content people's content gets taken down,
Speaker 1: other content gets left up. There's not much of an
Speaker 1: opinion written about it. Facebook barely gives reasons for why
Speaker 1: it does what it does. It seems like it's acting
Speaker 1: in consistently in a variety of ways. And so what
Speaker 1: the board can do is open up that decision making
Speaker 1: process to show what kinds of trade offs are being made,
Speaker 1: to make recommendations and in some cases of binding decisions
Speaker 1: on how those tradeoffs should be made, and doing it
Speaker 1: in a way that we write opinions, we publish those opinions,
Speaker 1: We tell people exactly what our sources of information are,
Speaker 1: what exactly we're weighing, what the kind of governing I'll
Speaker 1: put this in quotes law is. So what are the
Speaker 1: resources for relying upon to make those decisions in a
Speaker 1: way the company just hasn't And I think that that
Speaker 1: goes directly to how fairly the company treats its choosers. Again,
Speaker 1: there's a broader question of the transparency of any institution
Speaker 1: that's a wielding this much power. What the board does
Speaker 1: is one element of that. So I both want to
Speaker 1: explore the distinction that you're offering jamal between two different
Speaker 1: kinds of transparency and then also maybe ask you whether
Speaker 1: they might have more in common than you're suggesting. So
Speaker 1: I hear you saying that what the oversight board does best,
Speaker 1: and I agree with this is focusing on let's call
Speaker 1: it reason giving transparency, right, This is the idea that
Speaker 1: when the company makes a decision about some piece of content,
Speaker 1: it needs to follow principles and it needs to reveal
Speaker 1: transparently what its reasoning process was, and often they don't.
Speaker 1: And since the oversight board itself exercises that kind of
Speaker 1: transparency in making its own decisions, because you guys, tell
Speaker 1: everybody here or the principle is that we invoked, here
Speaker 1: are the facts we relied on, here are the moral
Speaker 1: ideas that we're relevant to our analysis, and here's the
Speaker 1: kind of conclusion that we reached after weighing these factors.
Speaker 1: You can urge Facebook to do something similar. So I
Speaker 1: get that side of the distinction. And then I hear
Speaker 1: you suggesting that there's also a kind of transparency of
Speaker 1: you know, how much does a company disclose about its
Speaker 1: internal research about the consequences of its actions? And so
Speaker 1: first let's just see if that is the distinction you're
Speaker 1: pushing here. So, yes, that is the distinction I'm pushing.
Speaker 1: I'll be curious what the follow up question is, because
Speaker 1: I do think that there is a relation between them,
Speaker 1: but I'll let you Yeah, I mean to be collaborative.
Speaker 1: I mean, I think that those are in some sense different.
Speaker 1: But if you think about, you know, Facebook having access
Speaker 1: to internal research that suggested maybe some of its policies
Speaker 1: we're having a negative effect on users, I think the
Speaker 1: public call is not merely that that fact should have
Speaker 1: been known, but that people want to know that Facebook's
Speaker 1: decision making process where it decided to continue these services,
Speaker 1: or that it decided to tweak them in certain ways
Speaker 1: rather than eliminate them all together, was a reasoning process
Speaker 1: that they can hear. So I mean, in that sense,
Speaker 1: the decision making is always you take certain facts, you
Speaker 1: have certain values, and you try to bring those together
Speaker 1: and make a decision, and then if you're being transparent
Speaker 1: about your decision making, you tell people why you did that.
Speaker 1: And so I actually have the ends think that that's
Speaker 1: actually more similar to the kind of transparency and decision
Speaker 1: making that you're talking about. I don't think it's just
Speaker 1: that people were saying, well, they should have told us
Speaker 1: about this research. I think they're saying they should have
Speaker 1: taken this research into account in making their decisions. And
Speaker 1: when Facebook says, which is sort of all they've said
Speaker 1: so far, oh, don't worry, we did, people's response to
Speaker 1: that is to say, well, how do we know you
Speaker 1: did that right? And had they been more transparent about
Speaker 1: their decision making process, I think they could have said, well,
Speaker 1: this is how we took that into account, or this
Speaker 1: is how we didn't take it into account. I do
Speaker 1: think it's the case, certainly that part of what the
Speaker 1: board does when it sees a decision that's made by
Speaker 1: Facebook or increasingly the board has weighed in and will
Speaker 1: weigh in on actual policies that Facebook is implementing and considering.
Speaker 1: One of the things we care about is why did
Speaker 1: the mistake happen? And when we say a mistake, we
Speaker 1: use a few different resources figuring out what counts as
Speaker 1: a mistake. Right, So we think about whether Facebook as
Speaker 1: apply its community standards accurately. We think about if Facebook
Speaker 1: is acting consistent with how it understands its values, and
Speaker 1: we think about international human rights law, which and the
Speaker 1: norms associated with the international human rights system to which
Speaker 1: Facebook has committed itself. It may well be that there
Speaker 1: are decisions that Facebook makes that are inconsistent with those
Speaker 1: values and norms. And one of the things that the
Speaker 1: Board tries to do and has been trying to do
Speaker 1: in decision is not just make an up or down
Speaker 1: decision on a piece of content. I'd say why with
Speaker 1: this mistake made? And in order to do that, it
Speaker 1: may sometimes be the case, right that we need to
Speaker 1: know more about what inputs there were into particular kinds
Speaker 1: of content decisions. And I think the Board in asking
Speaker 1: Facebook questions about that, in exposing what answers it gives
Speaker 1: to us when it refuses to give answers to us,
Speaker 1: in pushing Facebook to be more clear about what influences
Speaker 1: it has when it's decision making. Right. So, one of
Speaker 1: the recommendations the Board has made that Facebook has taken
Speaker 1: up is to be more clear about when governments make
Speaker 1: requests or Facebook to remove content. Right. So that's relevant
Speaker 1: to transparency as well. Right, So, there are things the
Speaker 1: Board can do that get at that deeper transparency. What
Speaker 1: I meant to say is that there are some very
Speaker 1: deep issues about who governs us that at the moment,
Speaker 1: the Board's jurisdiction and scope are limited. There's no question
Speaker 1: about that. There's very important progress that the Board can
Speaker 1: and does make on I'm trying to get Facebook to
Speaker 1: treat its users better or more consistently, to start trying
Speaker 1: to get at what's influencing its decisions. But there is
Speaker 1: always going to be a deeper question about the private
Speaker 1: companies engaged in far reaching activities that I think our
Speaker 1: questions for sort of all of society, Lots of different
Speaker 1: kinds of institutions, the Board, but also whistleblowers and journalists
Speaker 1: and researchers and civil society organizations that are equally if
Speaker 1: not more situated to get into than the Board itself.
Speaker 1: Let me ask you about one point where there was
Speaker 1: some overlap between what the Board said in its recent
Speaker 1: transparency reports and what the whistleblowers materials disclosed, and that
Speaker 1: was the program sometimes called cross Check, through which Facebook
Speaker 1: initially was trying to address just a relatively smaller number
Speaker 1: of distinctive users with respect to their newsworthiness of what
Speaker 1: was being posted on the platform, but that extended to
Speaker 1: cover really a very large number of users, many more
Speaker 1: than Facebook had acknowledged, and it seems many more than
Speaker 1: Facebook told the Oversight Board when the Oversight Board asked
Speaker 1: point blank about this in the course of the Trump
Speaker 1: deplatforming decision, what can you say about that and what
Speaker 1: do the oversight boards say about that recently? So I
Speaker 1: can say a bit about the sort of background here,
Speaker 1: but I'll note that Facebook has given to the board
Speaker 1: a policy advisory requests on how to structure it's cross
Speaker 1: check program. And I wouldn't want to say too much
Speaker 1: in advance of deliberating about that and getting more information
Speaker 1: about it about exactly what problems there might be with
Speaker 1: crosscheck or what the right way to resolve those problems
Speaker 1: might be. But crosscheck is this system that Facebook has
Speaker 1: in place, or had in place, in which it exposes
Speaker 1: certain users to additional layers of review, ostensibly on the
Speaker 1: theory that they don't want mistakes to be made with
Speaker 1: respect to certain users. And the board asked in the
Speaker 1: Trump decision about this program, and Facebook it that it
Speaker 1: was it was only used for a small number of users,
Speaker 1: and it turns out to be it's a few million.
Speaker 1: Facebook said to the board later that that was a
Speaker 1: small number in relation to the number of people on Facebook,
Speaker 1: which is of course true. But it's true in a
Speaker 1: kind of layally way. So what the board said and
Speaker 1: it's recent, I can say, since we both law professors,
Speaker 1: I can say that you're using the word layally in
Speaker 1: the negative sense of that term. That's that's right, right. So,
Speaker 1: if you're dealing with someone in an adversarial posture, as
Speaker 1: lawyers often are, right, sometimes if they ask you a
Speaker 1: question you answer it in the most narrow possible way.
Speaker 1: You might still be truthful, but in some ways it's
Speaker 1: misleading if you're being very narrow about it. But if
Speaker 1: you're you know, talking to a friend of yours and
Speaker 1: they ask you about some piece of information, it would
Speaker 1: be strange to be excessively narrow about that. And I
Speaker 1: what I would say is Facebook, in not being I
Speaker 1: think fully forthcoming, I think treated this in two adversarial
Speaker 1: sort of way. Right. So when we ask them for information,
Speaker 1: we think that they should give us the full context
Speaker 1: and try to be as helpful as they can in
Speaker 1: providing the board with information. And we told them as much, right. So,
Speaker 1: going forward, Facebook has promised that it's going to be
Speaker 1: more contextual in the way in which it responds to
Speaker 1: information requests, and that's going to be I think very
Speaker 1: helpful for the board to try to do. It's not
Speaker 1: better because you don't always know what you don't know right,
Speaker 1: and so understanding better exactly how the cross check program
Speaker 1: works can be helpful in deciding whether it's being applied
Speaker 1: fairly in a particular case, Jamal, I want to turn
Speaker 1: to the core of the Oversight Board's job, which is
Speaker 1: decision making, and here I'll be really curious to hear
Speaker 1: from you about how your distinctive approach to decision making
Speaker 1: plays out. You published an amazing book this year called
Speaker 1: How Rights Went Wrong, and that book, in turn drew
Speaker 1: on some of your earlier scholarship, which I and others
Speaker 1: read in the course of trying to think about how
Speaker 1: the Oversight Board should make its decisions in the first place.
Speaker 1: So some of your approaches I think maybe you already
Speaker 1: baked in before you got there. But I wonder if
Speaker 1: you would start by just saying something about your distinctive
Speaker 1: view of how courts or bodies that are sort of
Speaker 1: like chords, like the Oversight Board, should decide cases where
Speaker 1: there are reasonable arguments on both sides. Sure, and I'm
Speaker 1: happy to talk about this with a couple of caveats right,
Speaker 1: one being that it's not just my approach, right, I
Speaker 1: think I have a particular angle on it, But it
Speaker 1: is a pushback against the way in which US courts
Speaker 1: and often US thinkers about rights tend to think about rights,
Speaker 1: less of a pushback against some global standards. And the
Speaker 1: second thing I'll say is we are collaborative board, right,
Speaker 1: And so if I were writing all of the opinions
Speaker 1: just by myself, they might look a little bit different
Speaker 1: than writing opinions when twenty members have to more or
Speaker 1: less agree on them. The general point is that when
Speaker 1: we're talking about rights conflicts, that rights conflicts are very often,
Speaker 1: not always, but very often conflicts in which people have
Speaker 1: reasonable disagreement about how to apply a set of more
Speaker 1: or less shared values at a high level of generality,
Speaker 1: but they disagree on how to apply them in the
Speaker 1: particular case. When we're in that situation, it's not that
Speaker 1: helpful to pick out just a few rights that we
Speaker 1: think are important and essentialize them so that they are
Speaker 1: applied kind of absolutely whenever they're because that will tend
Speaker 1: to silence one or the other side of these rights conflicts.
Speaker 1: And I think in the US we tend to do
Speaker 1: this with the First Amendment. So the moment someone invokes speech,
Speaker 1: there's a battle over saying who has the speech right
Speaker 1: or whether there's a speech right or not. And because
Speaker 1: we know the stakes of that battle are extremely high,
Speaker 1: that you just sort of win if you get to
Speaker 1: say that you have a speech right. And what I
Speaker 1: try to urge in the book is in freedom of
Speaker 1: speech cases, as in many others, that a tremendous institutional
Speaker 1: variation in the ways in which speech might be affected. Right,
Speaker 1: So a purge of all people who are opposed to
Speaker 1: the government in which you put them in prison is
Speaker 1: extremely different from let's say, a university deciding how to
Speaker 1: regulate the speech of its students, or a platform deciding
Speaker 1: who is going to be able to amplify their content
Speaker 1: and spread it around the world. All forms of regulation
Speaker 1: of speech. But they're in very very different contexts, and
Speaker 1: that in some of those contexts we have to think
Speaker 1: more carefully about the various other values that we think
Speaker 1: are important than we do another of those contexts. Right, So,
Speaker 1: we care about national security, but we don't care about
Speaker 1: it so much that we allow purges of our political enemies.
Speaker 1: But the fact that we care about hate speech or
Speaker 1: we care about amplification of misinformation? Are values that we
Speaker 1: might think are sufficiently important to put some kinds of
Speaker 1: restrictions on who has access to certain kinds of platforms,
Speaker 1: And so even though they're both speech cases, they're all
Speaker 1: speech case. Is we have to think carefully about what's
Speaker 1: on the other side of the balance, depending on the
Speaker 1: institutional context. Can I ask you a philosophical question around that,
Speaker 1: Jamal that I find myself struggling with very much right now,
Speaker 1: and I don't think there's a simple answer to it.
Speaker 1: It has to do with the boundary between misinformation on
Speaker 1: matters that you and I would probably agree have a
Speaker 1: fact associated with them, and misinformation on matters that have
Speaker 1: a fact associated with it but has become so politicized
Speaker 1: that it becomes a stand in for somebody's political beliefs
Speaker 1: and values. Maybe a climate change would be a good example.
Speaker 1: I think you and I both think that there is
Speaker 1: a science of it, and the scientists are doing their
Speaker 1: best to get at it. They might be right, they
Speaker 1: might be wrong, but they achieve consensus they follow their process.
Speaker 1: But when people argue about climate change and whether it's
Speaker 1: man made, a lot of people are using in that argument,
Speaker 1: which is nominally an argument about facts, as a kind
Speaker 1: of stand in for their political points of view. And
Speaker 1: once that happens, the differences in what people are saying
Speaker 1: could be put into the box of misinformation if we're
Speaker 1: confident that we know what the science says, and in
Speaker 1: that case, maybe it's not so important to preserve different
Speaker 1: points of view, or they could be put into the
Speaker 1: category of political argument about political identity and about what
Speaker 1: should be done in the future, and that's really important
Speaker 1: and would probably deserve a lot more protection. So I
Speaker 1: deliberately didn't choose COVID because it's too close to home
Speaker 1: and too controversial, But climate change is still pretty darn important.
Speaker 1: So I guess I'm wondering what you think about that.
Speaker 1: And again, it's not that I think there's a particularly
Speaker 1: right answer to it. I just think it's a hard problem. Yeah, no, don't.
Speaker 1: I think it's definitely a hard problem. I don't think
Speaker 1: it has a sort of abstract answer. What I would
Speaker 1: say is a couple of things. So one is the
Speaker 1: bare fact that something is false perhaps should not engage
Speaker 1: or enrage or site us as much as whether something
Speaker 1: that is false is leading people to do something that
Speaker 1: is more materially harmful, So that just goes back into
Speaker 1: sort of COVID misinformation might be an exlightly different category
Speaker 1: than something like climate change, where the latter is might
Speaker 1: be influencing policy in some way, but in a somewhat
Speaker 1: indirect way. Whereas if someone really does think that if
Speaker 1: they inject bleach into their veins, or if they take
Speaker 1: some off labeled drug that might hurt them, that's in
Speaker 1: a different kind of category in terms of the immediacy
Speaker 1: of harm. And that's important, right because we because it's
Speaker 1: very hard, as you say, for these philosophical reasons to
Speaker 1: sort of adjudicate these things in the abstract, but when
Speaker 1: we are able to connect them to more concrete harms,
Speaker 1: that affects how we feel about regulating them, even if
Speaker 1: we can't resolve the philosophical issue that you just raised. Right, So,
Speaker 1: there are various forms of misinformation and ways in which
Speaker 1: we mislead each other. There's a long spectrum from pure
Speaker 1: truth to pure life, and we're often somewhere in the
Speaker 1: middle of that in our political discourse. So I tend
Speaker 1: to think that really the only productive way that a
Speaker 1: regulator of some kind can respond to that is to
Speaker 1: try to focus on direct and concrete harms. We'll be
Speaker 1: right back, Jamal on your oversight board. There is one
Speaker 1: of your CoA chairs, Michael McConnell's a retired federal judge
Speaker 1: also a law professor. Do people like him, or people
Speaker 1: who come out of one particular system find it relatively
Speaker 1: simple and seamless to shift to a more overtly recognizing
Speaker 1: approach in your view, or is there a kind of
Speaker 1: sense of cultural class or cultural difference behind the scenes.
Speaker 1: There are cultural differences. The Board is a very diverse
Speaker 1: institution along many dimensions, including the legal traditions that people
Speaker 1: are associated with, whether they're associated with legal traditions at all.
Speaker 1: I think that's a strength of the Board and that
Speaker 1: it doesn't become sort of overly lawyerized. My personal deliberative
Speaker 1: model is that I'm most familiar with is the you know,
Speaker 1: the faculty meeting or maybe the law law school workshop,
Speaker 1: which is a particular kind of culture sort of bouncing
Speaker 1: ideas off each other, challenging people fairly directly. And I
Speaker 1: do think we all take that into the liberation room,
Speaker 1: which turns out to be a zoom room. When we
Speaker 1: talk about we're going to talk about cases. And again,
Speaker 1: I think that's a that's a strength. Everyone who's joined
Speaker 1: the board joins it knowing has joined it knowing that
Speaker 1: this is a collaborative enterprise that you bring. You're there
Speaker 1: for a reason, and what you're bringing is valuable to
Speaker 1: the to the room. But we're also trying to reach
Speaker 1: a decision and trying to reach a certain degree of consensus.
Speaker 1: And I've certainly seen cases where people lodge strong objections
Speaker 1: and then they say, Okay, we had a discussion, my
Speaker 1: position lost, and now I'm on board. I think that
Speaker 1: that's been very healthy, very active, and I actually want
Speaker 1: us to be able to try to model that for
Speaker 1: people who aren't on the board right that when you
Speaker 1: disagree with about things, you hash it out. It's you
Speaker 1: have respectful disagreement, and you reach a decision. You move
Speaker 1: on to the next fight. What's been Jamal, the most
Speaker 1: surprising thing that you've experienced while working on the oversight board. Gosh,
Speaker 1: that's a hard question. What's the most surprising, because there's
Speaker 1: been a few surprising things, I think, but we'll give
Speaker 1: me several. I mean, I'm actually one of the reasons
Speaker 1: again full disclosure One of the reasons I'm asking you
Speaker 1: is I have a kind of nose pressed against the
Speaker 1: glass feeling sometimes about the Oversight Board, you know, like
Speaker 1: having dreamed the thing up, pushed for it, and then
Speaker 1: decided that I was so close to the company through
Speaker 1: the process of building it that I shouldn't serve on it.
Speaker 1: I sort of like hope that people whom I hugely
Speaker 1: respect and trust, like you, would go off and do it.
Speaker 1: But I don't have a feeling for the minute to
Speaker 1: minute of what it's like from the inside, and it's
Speaker 1: sort of kills me. So I'm actually really curious to
Speaker 1: get it. What have been various things that weren't what
Speaker 1: you would have expected, So I'll name I'll name two things.
Speaker 1: So one is that the work of the board is
Speaker 1: not just the work of the board members. Right, So
Speaker 1: we have a staff. The staff is excellent. Thomas Hughes
Speaker 1: is the director. I hadn't thought very carefully about the
Speaker 1: staff because I sort of had this idealized vision of
Speaker 1: you get a case and then you sit in your
Speaker 1: office and you think carefully about it, and you and
Speaker 1: then you just you come to a view. Right. But
Speaker 1: the day to day operation of the board the amount
Speaker 1: of research that has to go into particular cases, the
Speaker 1: complexity of writing these opinions and making sure we get
Speaker 1: them right, a million other things having to do with
Speaker 1: how do we work with Facebook to try to implement decisions,
Speaker 1: how do you actually set it up technologically in terms
Speaker 1: of security and privacy and the legal aspects of it,
Speaker 1: and just the size and quality of the staff. I
Speaker 1: think is one thing that I had not anticipated or
Speaker 1: hadn't thought carefully about before I took the job, but
Speaker 1: it's completely essential to what we do. The other is
Speaker 1: a point about Facebook, which is just the complexity of
Speaker 1: the company which I think I hadn't fully grasped. It's
Speaker 1: not just that sometimes there's a right hand in a
Speaker 1: left hand and they're doing different things, but it's twenty
Speaker 1: five different hands right and they're all different doing different things.
Speaker 1: And there's a lot of internal diversity at Facebook in
Speaker 1: terms of whether people think the company is doing the
Speaker 1: right thing or the wrong thing. Powder structure, it's it's platform,
Speaker 1: and I think there's a perception of the company that
Speaker 1: it's just sort of Mark Zuckerberg is sitting on a
Speaker 1: throne just making decisions for everyone. It's a it's a
Speaker 1: complicated place. Speaking of it being a complicated place, Facebook
Speaker 1: as we know it just changed its overall name to
Speaker 1: Meta or Meta Platforms, and that means this company is
Speaker 1: going to do many, many more things in the broadly
Speaker 1: speaking virtual reality space. Is the Oversight Boards Charter written
Speaker 1: to give the Oversight Boards supervisory power or authority in
Speaker 1: those kinds of undertakings beyond the product called Facebook. So
Speaker 1: I'd have to go and take another look at the charter.
Speaker 1: But my belief as I sit here is that the
Speaker 1: charter is very much connected to the platform as it
Speaker 1: exists today, and that if at some point in the future,
Speaker 1: the Board and Facebook we're going to decide that the
Speaker 1: Board was going to extend into other Facebook products, that
Speaker 1: would have to require some change to the governing documents
Speaker 1: of the Board. As I sit here today, I think
Speaker 1: all of us are waiting to see what exactly the
Speaker 1: company means by its entry into the virtual space. But
Speaker 1: at the moment, there's not much for the Board to
Speaker 1: say about that. What do you think would be a
Speaker 1: good measure? You know, we're now a year into the
Speaker 1: life of the Oversight Board, what would be a good
Speaker 1: measure in another year or two in your mind as
Speaker 1: to whether the work you were doing was having the
Speaker 1: kind of impact you hope it will have. I think
Speaker 1: the Board has already had some significant impact Facebook. I
Speaker 1: think the culture of the company now knows that it
Speaker 1: has to justify a number of the kinds of decisions
Speaker 1: that makes relating to users to the board. But in
Speaker 1: terms of how one would measure it from the outside,
Speaker 1: I think engagement with the board right. Part of the
Speaker 1: board's challenge has been that the board is an independent entity.
Speaker 1: It's structured to be an independent entity. Facebook doesn't control
Speaker 1: the board, right, but Facebook creative the board, And I
Speaker 1: think from a matter of public perception, I think, just
Speaker 1: as people have children and then the children become their
Speaker 1: own independent people, I think the board as a new
Speaker 1: institution is still working towards, and has to work towards,
Speaker 1: making clearer the degree to which it's truly an independent entity.
Speaker 1: And that means engagement with lots with people institutions that
Speaker 1: are not necessarily connected to, or in league with, or
Speaker 1: sympathetic with Facebook. For example, so the board is talking
Speaker 1: to former Facebook employees, including Francis Hogan, because we want
Speaker 1: to learn more about how to do our jobs better.
Speaker 1: The Wall street journal reporting. I certainly, and I think
Speaker 1: we've done this officially too. Is celebrates that, which is
Speaker 1: to say, we celebrate learning more about the company through
Speaker 1: other institutions as well. Right, So, the board is collaborative
Speaker 1: with other modes of accountability. It's complementary to other modes
Speaker 1: of accountability, including government. Right. I mean, so, I don't
Speaker 1: mean the Board doesn't have a position on whether or
Speaker 1: to what degree the government should regulate social media platforms.
Speaker 1: That's to say that we are part of a larger
Speaker 1: ecosystem in which we're all trying to make very powerful,
Speaker 1: very important companies as responsible as we can make them.
Speaker 1: And so again, the measure of that is who's engaging
Speaker 1: with us, who trusts us, who relies on us, who
Speaker 1: reads our opinions, who contributes to our policy recommendations, and
Speaker 1: who gives public comments. Do people trust this as an
Speaker 1: institution that can make a difference, that's listening to them,
Speaker 1: that's open to engaging with them in a transparent way.
Speaker 1: And I think we're on the road to doing that,
Speaker 1: But there's more work to be done. Jamal, What should
Speaker 1: I be asking you about the operation or future or
Speaker 1: reality of the oversight woord that I haven't asked you. Well,
Speaker 1: I think important for a new institution, which is what's
Speaker 1: the biggest challenge going forward? I think implementation is one
Speaker 1: of the biggest, just in the sense that we make
Speaker 1: binding decisions on individual cases. We've made seventeen of them.
Speaker 1: We've had five hundred thousand appeals. There's a billion pieces
Speaker 1: of content on Facebook every day, and we've made seventeen decisions. Right,
Speaker 1: so in some sense, right, how can you make an
Speaker 1: impact on just seventeen decisions. Well, of course, you pick
Speaker 1: the decisions that you're going to the cases that you're
Speaker 1: going to make decisions about, based on whether they can
Speaker 1: have a more long ranging impact. But then once you
Speaker 1: make a decision on that individual piece of content, the
Speaker 1: question is how can that decision spread across the company?
Speaker 1: And that often will require engineering changes, changes in the
Speaker 1: way the community standards are implemented by both machines and
Speaker 1: by humans. It might require changes in UM in specific
Speaker 1: policies that the company has UM we have to have
Speaker 1: a certain degree of independence from the company in making
Speaker 1: the decisions we make, but then in how to actually
Speaker 1: implement them on the platform. There's no way around having
Speaker 1: to collaborate with Facebook and in some sense, and so
Speaker 1: that requires, you know, a tricky balance of not just
Speaker 1: figuring out what the right answer is in terms of
Speaker 1: implementing decisions, but also you know, figuring out what Facebook
Speaker 1: really can and really can't do. UM. Since we're not engineers, UM,
Speaker 1: you know, how much do you take This is really
Speaker 1: expensive and really complicated as an as an answer is hard, right,
Speaker 1: And there's there's no way around that being hard other
Speaker 1: than you build expertise over time, you build relationships over time,
Speaker 1: You bring expertise onto on board, onto our staff, and
Speaker 1: onto our board so that we're not just relying on
Speaker 1: Facebook's technical know how. And that's going to be something
Speaker 1: that is an ongoing issue. And if you think about it,
Speaker 1: just to underscore your point about it taking time, you know,
Speaker 1: the Supreme Court of the United States has ordered the
Speaker 1: federal government, it's ordered states, it's ordered institutions within states
Speaker 1: to do very complicated things in its history, and sometimes
Speaker 1: they pull it off. Sometimes they don't. Sometimes they're dragging
Speaker 1: their feet because they have bad intentions. But sometimes it
Speaker 1: really is just instrumentally very difficult to operationalize the commands
Speaker 1: of the court. And so that creates a kind of
Speaker 1: overtime dialogue where both sides gained expertise and develops some
Speaker 1: degree of trust, even alongside the possibility of occasionally being
Speaker 1: adversarial to each other. And I would say that's normal
Speaker 1: for any entity that's engaged in oversight and the body
Speaker 1: that it's overseeing, in the same way that in a sense,
Speaker 1: the US Supreme Court exercise is a kind of constitutional
Speaker 1: over the rest of our government. So that's to say
Speaker 1: that you're off to the right start, and as you say,
Speaker 1: it's going to take time and effort to get it right. Yeah,
Speaker 1: I think that's if there's a final point I would
Speaker 1: emphasize on the board and measuring its impact, is it
Speaker 1: will take time. We live in a culture, certainly in
Speaker 1: which the news cycle lasts a day or last two
Speaker 1: days or a week at most if it's a really
Speaker 1: important story, but building an institution trying to get you know,
Speaker 1: we talk about moving the ship of State, but you
Speaker 1: know the ship of Facebook. Moving that ship is going
Speaker 1: to take time. That doesn't mean that you get an
Speaker 1: infinite leash on moving that ship right, and so you
Speaker 1: work as quickly as you can. There are a lot
Speaker 1: of issues with Facebook and figuring out what to prioritize
Speaker 1: what's going to take six months versus what's going to
Speaker 1: take five years as part of the challenge, and as
Speaker 1: you say, we're off to the right start and there's
Speaker 1: a lot of work to be done. Jamal, I want
Speaker 1: to thank you for this very wonderful and frank conversation.
Speaker 1: I also want to thank you for your academic work,
Speaker 1: which is taught me a lot. And I want to
Speaker 1: thank you specifically for taking on the challenge of being
Speaker 1: one of the chairs of the Oversight Board. It would
Speaker 1: not be the same Oversight Board without you. And the
Speaker 1: reason that I think it has a chance to make
Speaker 1: meaningful contributions is precisely because people like you have agreed
Speaker 1: to take on its work. So thank you, Thank you, Noah,
Speaker 1: we'll be right back. There are twenty members of the
Speaker 1: Oversight Board, but the reason I particularly wanted to speak
Speaker 1: to Jamal is that his academic expertise is precisely in
Speaker 1: how hard decisions should be made by bodies like the
Speaker 1: Oversight Board. What's more, the chairs of the Oversight Board,
Speaker 1: of whom Jamal is one, exercise disproportionate power relative to
Speaker 1: the other members when it comes to setting the agenda
Speaker 1: for the Board and deciding what kinds of important decisions
Speaker 1: it ought to make. Speaking to Professor Jamal Green about
Speaker 1: the Oversight Board was a kind of split screen experience
Speaker 1: for me. On the one hand, I had the pleasure
Speaker 1: of hearing a true expert on decision making talk about
Speaker 1: how he makes decisions and how the institution that he
Speaker 1: is helping to shape thinks about those decisions. Similarly, in
Speaker 1: that same screen, I was hearing the perspective of one
Speaker 1: of the chairs of the Oversight Board talk about what
Speaker 1: its job is and what it needs to be, about
Speaker 1: what it's done well so far, and the challenges that
Speaker 1: it faces in the future. Over on the other screen
Speaker 1: was my sense of wonderment, shock, and to be honest,
Speaker 1: a slight feeling of the surreal to realize that an
Speaker 1: institution that I helped imagine and create is actually up
Speaker 1: and running, and that what it does has absolutely nothing
Speaker 1: to do with me or anything I say about it.
Speaker 1: In that respect, I am thrilled by what the Oversight
Speaker 1: Board is doing, but also nervous on its behalf, sort
Speaker 1: of in the way you would be nervous for anything
Speaker 1: that you participated in creating that goes off on its own.
Speaker 1: You want the institution to do well and be independent,
Speaker 1: but of course you also wish it would do exactly
Speaker 1: what you wanted to do in every context and in
Speaker 1: every element. My ultimate takeaway from the conversation with Jamal
Speaker 1: is that the oversight board is going to go its
Speaker 1: own way. It is going to continue to assert authority
Speaker 1: over Facebook's decisions. It is going to continue to press
Speaker 1: Facebook to try to be more transparent, but it's also
Speaker 1: going to have to grapple with the limitations of its
Speaker 1: own design. As an oversight board that can give guidance
Speaker 1: and advice to Facebook on a case by case basis,
Speaker 1: and can tell Facebook what to do specifically when a
Speaker 1: Facebook asks, but is not designed to nor has the
Speaker 1: capacity to fundamentally transform the way the company does business.
Speaker 1: For that kind of transformation, Facebook, like other companies, will
Speaker 1: have to act on its own and on the basis
Speaker 1: of its own conception of the public interest and the
Speaker 1: interests of itself and its shareholders. Until the next time
Speaker 1: I speak to here on Deep Background, breathe deep, think
Speaker 1: deep thoughts, and try to have a little fun. If
Speaker 1: you're a regular listener, you know I love communicating with
Speaker 1: you here on Deep Background. I also really want that
Speaker 1: communication to run both ways. I want to know what
Speaker 1: you think are the most important stories of the moment,
Speaker 1: and what kinds of guests do you think it would
Speaker 1: be useful to hear from. More So, I'm opening a
Speaker 1: new channel of communication. To access it, just go to
Speaker 1: my website Noah Dashfelman dot com. You can sign up
Speaker 1: from my newsletter and you can tell me exactly what's
Speaker 1: on your mind, something that would be really valuable to
Speaker 1: me and I hope to you too. Deep background is
Speaker 1: brought to you by Pushkin Industries. Our producer is Mo La,
Speaker 1: board engineer is Ben Taliday, and our showrunner is Sophie
Speaker 1: Crane mckibbon. Editorial support from noahm Osband. Theme music by
Speaker 1: Luis Skara at Pushkin. Thanks to Mia Lobell, Julia Barton, Lydia,
Speaker 1: Jean Coott, Heather Faine, Carlie mcgliori, Maggie Taylor, Eric Sandler,
Speaker 1: and Jacob Weisberg. You can find me on Twitter at
Speaker 1: Noah R. Feldman. I also write a column for Bloomberg Opinion,
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