By INGRID BURRINGTON
It’s almost quaint to think that just five years ago, Mark Zuckerberg cheerfully took credit for major pro-democracy movements during Facebook’s IPO launch. Contradicting his previous dismissal of the connection between social media and the Arab Spring, Zuckerberg’s letter to investors spoke not just about the platform’s business potential but also its capacity to increase “direct empowerment of people, more accountability for officials, and better solutions to some of the biggest problems of our time.” 2012 Facebook promised a rise of new leaders “who are pro-internet and fight for the rights of their people, including the right to share what they want and the right to access all information that people want to share with them.” Technically, that promise came true, though probably not how Zuckerberg imagined.
Today, the company has to reckon with its role in passively enabling human-rights abuses. While concerns about propaganda and misinformation on the platform reached a fever pitch in places like the United States in the past year, its presence in Myanmar has become the subject of global attention. During the past few months, the company was accused of censoring activists and journalists documenting incidents of and posting about what the State Department has called ethnic cleansing of the country’s Rohingya minority. Because misinformation and propaganda against the Rohingya apparently avoided the community-standards scrutiny afforded activist speech, and because of the News Feed’s tendency to promote already-popular content, posts with misinformation aiming to incite violence have easily gone viral. Experts describe Facebook’s role in the country as the de facto internet, which gives all of their actions and inactions on content even greater influence on politics and public knowledge.
Platform entanglement in human-rights abuses isn’t unique to Facebook. Earlier this year, YouTube deployed a content-moderation algorithm intended to remove terrorist content, inadvertently deleting archives of footage that Syrian activists had been collecting as war-crimes evidence. Some have made similar criticisms of American platforms operating abroad, including Twitter’s compliance with Turkish government requests for censorship, and similar acts by platforms in China.
The 2016 election has given platform regulation new traction in American policy circles, bringing debate in the United States closer to Europe’s. But beyond Western electoral politics, there remain hard legal questions with far more human lives at stake. While the violence in Myanmar predates Facebook’s presence in the country and absolutely can’t be fully laid at their feet, the platform is a central source of online information, and in Myanmar propaganda legitimizing crimes against humanity can have massive reach and influence. Dissident voices posting poems about the crisis have been declared in violation of vaguely defined community standards (and, while those decisions have sometimes been reversed, it’s usually after receiving media attention, which not all incidents are likely to receive). There’s been coverage and documentation of hate speech on the platform in Myanmar since 2014, which is to say Facebook has been aware of the issue for quite some time.
When asked about what resources the company has allocated to address misinformation and hate speech, Facebook spokesperson Ruchika Budhraja responded via email that “we have steadily increased our investment over the years in the resources and teams that assist in ensuring our services are used by people in Myanmar to connect in a meaningful and safe way.” Projects like illustrated print copies of their community standards translated into Burmese comics in 2015, partnerships with civil-society groups, and a Facebook safety page for Myanmar with PDFs of the illustrated community standards and safety guide are among the digital-literacy campaigns that, Budhraja wrote, “have reached millions of people, and we listen to local community groups so that we can continue to refine the way in which we implement and promote awareness of our policies to help keep our community safe.”
This is encouraging, though Facebook still has no full-time staff on the ground in Myanmar. Regardless of past and ongoing good-faith efforts from Facebook to try to address what’s happening now, the damage has been and continues to be done.
While advocates and journalists made compelling moral and ethical arguments for Facebook to take action this past fall, legal liability remained conspicuously absent. There’s no agreed-upon point at which a platform’s automated actions at scale rise to a potentially illegal level of complicity in crimes against humanity, and seemingly little agreement about what is to be done after that point is reached.
That’s partly because it’s extremely unlikely that Facebook (or the other big platforms) will ever be deemed legally liable or legally compelled to accountability for playing a significant role in human-rights abuses around the world. Even posing the question of a platform’s legal culpability for human-rights abuses seems a quixotic pursuit, based on the reaction when I’ve brought it up with attorneys and human-rights advocates. The apparent absurdity of pursuing legal accountability seems to have less to do with the innocence or guilt of platforms and more to do with the realities of human-rights law, which has a poor track record with regard to corporations in general and which is uniquely challenged and complicated by tech platforms in particular.
To assume one might hold a company legally responsible for human-rights abuses also assumes there’s a jurisdiction that can hear the case. The International Criminal Court isn’t really set up to try companies—and, even if it were, it can only bring cases against nations whose governments are signatories to the Rome Statute (the treaty that established the ICC). The United States signed but never ratified the treaty and formally withdrew its signature in 2002. The ICC technically can bring cases on behalf of member countries (as ICC prosecutor Fatou Bensouda argued this year when requesting to investigate the United States on behalf of member state Afghanistan), but Myanmar isn’t a member.
Filing a case in the country where human-rights abuses take place is difficult, because an oppressive regime’s court system is unlikely to actually offer a fair trial to victims. In the United States, noncitizens can file civil suits against American companies that have violated international treaties under the somewhat obscure 1789 Alien Tort Statute. But case law isn’t exactly in the victim’s favor with the statute. Companies tend to have more success, particularly in light of 2013’s Supreme Court case Kiobel vs. Royal Dutch Petroleum, which ruled that the statute technically doesn’t apply to actions taken outside the United States (though, seeing as Facebook has no full-time employees in Myanmar and the News Feed is worked on by engineers in the United States, there might still be an argument here). Given the overhead and exhaustion of legal battles with well-lawyered companies, and given companies’ preference to make bad PR quietly disappear, at best victims might settle out of court.
Assuming one settles the thorny jurisdiction question, it’s difficult to identify what crime Facebook has committed. Lack of foresight isn’t actually a crime against humanity. Furthermore, “the persecution and discrimination against the Rohingya has been going on for quite some time, and it would be happening if Facebook was not there at all,” pointed out Cynthia Wong, a senior researcher on internet and human rights at Human Rights Watch.
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