Casey Johnston had an article on Ars Technica today about Facebook’s announcement that they would step up monitoring and removal of what they deem to be hate speech. Because this appears to be driven by complaints from women’s advocacy groups, the commentary has been largely political. I’d like to set aside the specifics of this and focus on the general case. It’s an interesting move on Facebook’s part because it sets a precedent.
Long, long ago, when telephones were still a thing, there was a legal idea of a “common carrier” (it still exists, of course, I’m just employing some blogtistic license). Common carriers offered services to the general public and were generally prohibited from doing anything about the content. For example, AT&T could not cut off your phone service if you did nothing but swear and say profane things when you were on the phone.
Although phone provides are still considered common carriers, internet service providers (ISPs) generally are not. ISPs, while protected from liability under various laws (e.g. Comcast can’t be shut down because a customer used a Comcast connection to transmit child pornography), can [in my understanding] theoretically terminate service if they don’t like what you’re “saying” on your connection.
Moving up the stack, websites such as Facebook or Funnel Fiasco are neither ISPs nor are they telecommunications common carriers. The general consensus, though untested in court as far as I know, is that sites are privately owned and can allow or disallow whatever content they like. This seems to be a pretty reasonable position, but there’s a difference between Facebook and Funnel Fiasco.
Apart from having a smarter and better-looking founder, Funnel Fiasco doesn’t allow just anyone to have a presence on the site. Facebook, especially for businesses/organizations, is more than just a blog or a message board, it’s a key part of digital presence. While that doesn’t make it an ISP, it does move it away from being just a website. Perhaps some additional category (e.g. “hosting provider”) needs to enter the understanding in this context.
What makes Facebook’s policy interesting to me from my perch as an armchair lawyer is the selective enforcement. While they are well within their legal rights, does it set a dangerous precedent for them? By choosing to police some content, are they liable (legally or otherwise) for not policing other content? Can they be held liable for policing content when other substantially similar content was not policed? Can the publicness of Facebook make it a common carrier?
Eventually this will become better defined. Whether it be by legislation, regulation, or litigation.