Mark Zuckerberg on Facebook and Fake News

So-called “fake news” has been in the news recently – whether in the “real news” or more supposed “fake news” sites – I’ll leave to you to decide. On November 19, Facebook’s CEO Mark Zuckerberg posted his views on the subject. I commend Mr. Zuckerberg’s thoughtful post as well worth a read. 

Right now, in the post-election environment, passions on behalf of some are running high, too high in some quarters. And when passions run high, oftentimes there are pleas for action, even when the solutions offered might be worse than the supposed ills. 

Read Mr. Zuckerberg’s entire post, but here is a brief excerpt that makes a lot of sense:

“The problems here are complex, both technically and philosophically. We believe in giving people a voice, which means erring on the side of letting people share what they want whenever possible. We need to be careful not to discourage sharing of opinions or to mistakenly restrict accurate content. We do not want to be arbiters of truth ourselves, but instead rely on our community and trusted third parties.” 

Mr. Zuckerberg goes on to say that “the percentage of misinformation is relatively small.” On this point, it’s worth taking a look at A. Barton Hinkle’s November 23 post at Reason, “The Fake News Epidemic of Fake News.” Mr. Hinkle contends there are at least two problems with the recent Buzzfeed story upon which so much of the buzz surrounding “fake news” rests: “First, the epidemic of fake news is overstated. Second, fake news is far from new.” 

In any event, in his post, Mr. Zuckerberg commendably outlines some measures Facebook itself is considering to address the fake news issue. Several look promising, at least in theory. You can decide for yourself. 

But the main point is that to the extent “fake news” is a serious problem at all, it should be left to the platforms themselves – and interested private third parties – to address it, not the government. 

As a matter of sound policy, the government should stay out of the business of evaluating the truthfulness of news, except, for example, in rare instances involving public health and safety. And as a matter of law, the First Amendment’s free speech clause demands no less.

Thanksgiving Day 2016

Since I founded the Free State Foundation in 2006, I’ve tried to pen special holiday messages to our friends and supporters on Memorial Day, Independence Day, and Thanksgiving Day. As we enter our second decade, I don’t plan on stopping the tradition any time soon. So, here’s hoping you don’t mind.

Of course, there are many more holidays on the calendar from which to choose if I were so inclined. But to me, Independence Day, Memorial Day, and Thanksgiving are uniquely American holidays. I am unabashed in my belief that America is a unique nation, blessed with a unique form of government bequeathed to us by our Founders.

That the Founders were not, by any means, perfect men does not mean that they lacked the foresight and wisdom to bequeath to us the means by which “to form a more perfect Union.”

From its inception, the Free State Foundation has proclaimed as its mission the promotion of free market, limited government, and rule of law principles. In that vein, we have focused on eliminating unnecessary regulatory mandates, protecting individual and economic liberty, including property rights, and making government more effective, efficient, and accountable.

On this Thanksgiving, as always, I’m grateful that we live in a free country in which we can freely advocate for the adoption of laws and policies that, in our view, comport with our principles. And I’m equally grateful that you are able to freely advocate for yours. In other words, while we at the Free State Foundation advocate, vigorously I hope, for the adoption of free market and limited government policies, you may, if you wish, advocate for the adoption of anti-free market and anti-limited government policies.

But here’s what is most important: All of us must advocate – that is, exercise our First Amendment rights – consistent with the rule of law and within the constraints of our Constitution. That is what ultimately binds us together as Americans. On adherence to the rule of law, there should not – must not! – be disagreement, or we will lose that which makes America exceptional.

This year has been one in which my own family has had to confront personal challenges, and I am sure the same is true for some of you as well. But we know we have many blessings to count, and for that we are thankful. And I certainly hope the same is true for you.

So, in the spirit of a uniquely American holiday, and with much for which to be grateful, on behalf of those of us at the Free State Foundation, I wish you a Happy Thanksgiving, and a meaningful one too.

Midnight Rules Relief Act

The House of Representatives just passed the Midnight Rules Relief Act. See Broadcasting & Cable's John Eggerton's report here.

This is an excerpt from John's story:

"But the House on Thursday passed (240 to 179) a bill—H.R. 5982, the Midnight Rules Relief Act—to backstop those warnings to all federal agencies about 11th-hour votes, on or off a public meeting. The bill can't get a Senate vote until at least Nov. 28 since the Senate is not holding any business sessions until that date given the Thanksgiving holiday next week.

The bill 'amends the Congressional Review Act to allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a President's term. Congress may disapprove a group of such regulations together (i.e., 'en bloc') instead of the current procedure of considering only one regulation at a time.'"

The bill is unlikely to get through the Senate, but it is an important indication of the House of Representatives' seriousness regarding regulatory reform. 

Congresswoman Marsha Blackburn to Speak at FSF Tenth Anniversary Celebration Luncheon

Congresswoman Marsha Blackburn, Vice Chair of the House Energy and Commerce Committee, and Republican Deputy Whip, will help celebrate the Free State Foundation’s Tenth Anniversary on Wednesday, December 7, 2016, at the National Press Club.

Congresswoman Blackburn joins FCC Commissioners Ajit Pai and Michael O'Rielly, and Daniel Lyons, Professor at Boston College Law School and a member of FSF's Board of Academic Advisors, who will reflect on the direction of law and policy over the Free State Foundation's first ten years and look at the challenges ahead.

A flyer with details is here. Register here!

Free State Foundation Celebrates Its Tenth Anniversary!

Please help FSF celebrate the Tenth Anniversary of its founding at a gala celebratory lunch on Wednesday, December 7, 2016, at the National Press Club in Washington, DC.

FCC Commissioners Ajit Pai and Michael O'Rielly, and Daniel Lyons, Professor at Boston College Law School and a member of FSF's Board of Academic Advisors, will reflect on the direction of law and policy over the Free State Foundation's first ten years and look at the challenges ahead. 

A flyer with event details is here. Register here!

FCC's Privacy Order Will Result in Higher Broadband Prices

On October 27, 2016, the FCC adopted a Report and Order purporting to “protect the privacy of customers of broadband and other telecommunications services.” The rules require consumers to affirmatively opt-in before Internet service providers (ISPs) can collect “customer proprietary information,” which applies to information that the ISP “acquires in connection with its provision of telecommunications service.”

For example, if a consumer who subscribes to Comcast chooses not to opt-in, it appears Comcast cannot collect information regarding that consumer’s Amazon purchases because the data would be acquired through the Comcast-provided Internet connection. However, Comcast will be able to purchase that consumer’s Amazon information either directly from Amazon or perhaps from the consumer’s operating system and/or web browser. In other words, ISPs are allowed to purchase consumer information from edge providers, which are not subject to the FCC regulations, even though the edge providers have greater access to consumer information than ISPs.

FCC Commissioner Michael O’Rielly discussed this important issue during his dissent:

[A]ll that the FCC has really done is raise the transaction costs. The FCC, in its typical nanny state fashion, seems to assume that consumers prefer an opt-in regime. But when consumers find out the end result is that they may have to pay more for heightened privacy rules that they never asked for, I doubt they will be grateful that the FCC intervened on their behalf. Indeed, this is a grandiose attempt to enact legacy talking points into rules so that Commission leadership can pat itself on the back while consumers receive no actual, practical protections.

Because the FCC’s regulations with the opt-in default are not imposed on edge providers, such as Google, these platforms will continue to collect massive amounts of consumer information. As FSF scholars stated in their comments, due to encryption technologies, edge providers have a greater access to consumer information than ISPs. In order to provide targeted benefits, such as zero-rated services, to consumers who choose not to opt-in, ISPs will have to purchase information from edge providers or other Internet companies. (See my Perspectives from FSF Scholars entitled “FCC Privacy Rules Would Harm Consumers by Creating Barriers for ISP Advertising.”)

As Commissioner O’Rielly discussed, because ISPs need consumer information in order to offer targeted benefits, these regulations simply raise the costs for ISPs to engage in online advertising, zero-rated programming, or other targeted consumer offerings. Consumers who choose not to opt-in will be confused because edge providers will continue to collect their information and sell it to ISPs. And it’s likely ISPs will increase the price of broadband service in order to cover the costs of purchasing consumer data from edge providers.

The FCC order also envisions case-by-case investigations of “pay-for-privacy” practices. ISPs will be less likely to charge different prices to consumers with different privacy preferences. For example, consumers who choose not to opt-in but who still want to receive targeted offerings should end up paying more than those who choose to opt-in because ISPs need to purchase consumer information on their behalf. However, the FCC’s investigation likely will chill any efforts by ISPs to offer differentiated pricing based on consumer privacy preferences. Therefore, if ISPs want to offset the increase in regulatory costs, the FCC’s investigation is more likely than not to force providers to raise broadband prices for all consumers, not a subset.

With its new regulations, the FCC claims to “protect consumer choice” and “toughen pay-for-privacy safeguards.” But by expanding the definition of “customer proprietary information” to include non-sensitive information, the effect of the FCC order will be to impose higher prices for all broadband consumers without actually creating more choices. (See my October 2016 blog.) Instead of a fraction of consumers paying for privacy, all consumers are harmed by the likely result that the FCC's new regulations will lead to higher broadband prices.