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Meta created a ‘Supreme Court’ for content. Then it threatened its funds.

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Last summer, the situation was dire for Meta’s Oversight Board, an experimental court of journalists, analysts and experts empowered to investigate Meta’s handling of controversial posts. Meta, its sole funder, had privately threatened to pull back support, pushing the board to cut costs or seek new sources of revenue.

The Oversight Board had tried for years to find new clients, approaching YouTube, TikTok, Pinterest and a host of other tech companies without much luck, according to half a dozen people familiar with the board’s efforts, all of whom spoke on the condition of anonymity to discuss private organizational matters. Many cited Meta’s blemished reputation, noting that the board — launched with great fanfare in 2020 — had failed to improve the social media giant’s image.

Now, however, the Oversight Board may get a second chance. A sweeping European law, known as the Digital Services Act (DSA), requires tech companies to supply an independent group of experts to social media users seeking to appeal restrictions on their accounts. And the board is offering itself up for the task.

The board’s trust, an independent entity that oversees its finances, has funded a separate center to handle an influx of European user appeals, some of the people said. Thomas Hughes, the former Oversight Board administration director, will lead the new organization, which has applied to be an “Out-of-Court Dispute Settlement body” in Ireland.

Oversight Board Co-chair Helle Thorning-Schmidt said in a statement that “the Oversight Board Trust is exploring such initiatives, which would have to be fully independent of the Board.”

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Some employees and board members worry the focus on minor content moderation cases could jeopardize the group’s original mission to hold accountable a social network used by billions. In the board’s early days, reporters covered its decisions on hate speech, coronavirus misinformation and former president Donald Trump’s controversial ban like Oval Office briefings. Some experts hailed the board — which could overrule even Meta CEO Mark Zuckerberg — as a new model for social media governance.

Four years later, industry shifts have thrust the Oversight Board into limbo. Like many social media companies, Meta has weakened or cut many of the systems and staffers who once guarded the platform against potential harms, changing its focus to comply with the landmark European law. Some watchdogs criticize the board as a slow-moving organization with a hefty price tag, and question its relevance to the company, regulators and the general public.

The board, meanwhile, is trying to bolster its influence, appointing new leaders with a mandate to take on a bigger, more productive caseload with less money from Meta.

“In order for it to have power, Meta needs to believe that it is adding value,” said Evelyn Douek, an assistant professor of law at Stanford who has studied the board. “The board still has to prove its worth.”

Noah Feldman conceived of the Oversight Board while on a grueling 2018 bike ride through the hills of Old La Honda Road in the North Bay. His college classmate — Meta’s then-COO Sheryl Sandberg — had booked the Harvard law professor meetings with the company’s policy officials to learn more about the problems facing social media companies.

In Feldman’s opinion, many of the most contentious issues at the company fell outside its employees’ expertise.

What Facebook needs is a Supreme Court, he thought — a group of people from different fields who could use their experience to make tough calls. Feldman typed up a 1200-word memo and sent it to Sandberg out of courtesy. Sandberg, initially skeptical, passed it to Zuckerberg.

He latched on.

In the absence of regulation, private companies were forced to determine the bounds of acceptable speech, Zuckerberg reasoned.

“This is a major experiment in governance,” Zuckerberg said in 2019. “If it’s successful, this board could become an important part of how online expression and communities work”

Meta put $130 million into an independent trust in 2019 for the board to use for the next six years. Three years later, Meta added another $150 million donation. It never specified how much funding it would provide in the future.

The Oversight Board’s decisions on whether to remove pieces of content are binding — outranking even Zuckerberg. Its recommendations on overall policies and rules are considered, but not automatically enforced. Cases are decided and written by a five-board-member panel and then sent to the whole board for a vote — a process that is supposed to take 90 days or less.

The group was controversial from the start. Some Meta critics including NAACP President Derrick Johnson and former Facebook investor Roger McNamee, questioned whether the board could be truly independent from a company that funds it. They formed their own coalition, cheekily called “The Real Facebook Oversight Board.”

Meanwhile, some Meta employees, especially those on the content policy team, were wary of a group of outsiders making binding decisions on the company’s policies, some of the people said.

“Some people were very excited about it,” said one former Meta employee, who spoke on the condition of anonymity for fear of damaging business relationships. “Other people viewed it as more of an intrusion into the way we’ve always done business.”

Proponents have called the Oversight Board a model in internet governance, offering decisions that have changed how the company operates. After the Oversight Board criticized Meta’s manipulated media policy in February, for example, the social media company followed the group’s recommendations and expanded its AI-labeling strategy to a wider range of video, audio and images.

Board members pushed for transparency, urging the company to publish or share its highly secretive list of dangerous organizations and individuals, who users are banned from praising on the platform. Fearful of endangering its own employees, Meta didn’t release the list, but eventually agreed to give the board periodic updates on its contents, according to two people familiar with the matter.

Yet, the board has also faced criticism from some academics and tech policy analysts that it is slow-moving, issuing too few consequential decisions with broad impacts in the industry. The Oversight Board has acknowledged its decisions arrive after the 90-day deadline, attributing some missed deadlines in a 2023 transparency report to “staff taking leave during the December holiday period.”

Last year, the Oversight Board pledged to increase its speed, expediting some decisions and offering summary decisions, made by a five-member panel without a full vote. Thorning-Schmidt, the former prime minister of Denmark, said the board completed more than 50 cases in 2023, surpassing previous years, and is on track to exceed that number in 2024.

“We’ve always made it clear that we were never a numbers game,” she added, conveying the board “increasingly prioritizes cases that can really show you something about how Meta is moderating content.”

Oversight Board leaders have long understood that its dependency on Meta’s funding made it vulnerable.

By 2020, Oversight Board staffers started pitching internet platforms with similar free speech challenges to develop their own content guidelines with the board, people familiar with the matter said. The tech companies largely turned down the offer, saying “We don’t need to be under the microscope,” according to one person familiar with the effort, who spoke on the condition of anonymity to reveal sensitive business negotiations about which they were not authorized to speak.

But Meta’s own financial situation shifted in late 2022, when the collapse of digital advertising prompted the Menlo Park, Calif.-based company to start shedding thousands of jobs.

Meta signaled to the Oversight Board leaders that they, too, should streamline costs, implying that the company might not keep funding at its current level, according to four people familiar with the matter. There is an “adjustment to our budget that we believe comes from the adjustment that Meta has done in their own budget over the past year,” Thorning-Schmidt said.

Meta Director of Governance Jennifer Broxmeyer, who oversees the company’s relationship with the board, said the tech giant is protective of the group’s independence and didn’t pressure it to cut jobs, adding that the company expects to continue funding the board in the future.

Meanwhile, the Oversight Board’s administration was already working on its second act: helping companies like Meta comply with the DSA, first passed in 2022. The board could evaluate the dangers of online platforms — a risk assessment mandated by the law — or create the settlement bodies to allow users to dispute company decisions, people familiar with the matter said.

The appeals idea took off, with Hughes laying the groundwork with E.U. regulators who would need to approve the effort. A group of trustees were appointed to oversee the new appeals center, while former executive vice president Amy Studdart was tapped to become the interim director. The Oversight Board administration has been searching for a permanent director while also filling the gap left behind by workers who were laid off in recent months.

The DSA made the board’s services more appealing to other tech companies. The Oversight Board administrators touted the group’s experience in making impartial decisions about contentious content moderation challenges facing Meta, according to a slide-deck pitch, which was viewed by The Washington Post.

Participating platforms will benefit “from the Oversight Board’s tried-and-tested knowledge and experience managing user appeals” the deck said.

Broxmeyer said in a statement that “Meta has said before that it is supportive of the Board exploring potential alignment with the Digital Services Act and a broader cross-section of industry in this way.”

Behind the scenes, the center is controversial. Some members worry it will shift the perception of the group from an organization that issues thoughtful policy opinions to one that makes pro forma content moderation decisions for European users. It’s also not clear whether the new appeals center or any other DSA-focused initiatives will be enough to fund the organization.

For now, Oversight Board leaders are pleading with employees to have patience as the group works through some of the thorny questions that lie ahead.

“As we go through this change, everyone involved is aligned in ensuring that the Board is set up for long term impact as regulation, technology and the geopolitical landscape transforms the world around us,” Studdart wrote in a recent memo to staffers. “That requires forward thinking and skilled leadership, your dedication and expertise, and a long-term commitment from Meta.”

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