On February 20, 2019 Harvard Law Professor Jonathan Zittrain and Facebook’s CEO Mark Zuckerberg had a long and very interesting conversation on the subject of Facebook’s roles, responsibilities, and legal obligations. All of which are the issues that in-house counsel wrestle with in a myriad of ways. The video is below. You can easily find a fair number of articles about the event as well.
Facebook’s deeds and misdeeds certainly have taken up disproportionate mindshare over the last several years. At the risk of oversimplifying the complex issues at stake, the core issue may be as clear as…
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Do you believe Facebook?
Short answer, no. I believe that as a good old-fashioned corporate entity it is driven by profit. Consequently I believe it is doing a reasonable job – that is not to say I believe the rhetoric. Despite its foibles and myriad of issues over the past few years, Facebook maintains that it wishes to protect user’s privacy and make its platform “person oriented”. Be that as it may we still seem to find the company stumbling from one scandal to another.
Should Facebook be considered an “information fiduciary” when it comes to the privacy of its clients? And why shouldn’t Facebook tell users how much advertising revenue their respective data generates on a daily basis?
Firstly it is infinitely interesting to see Zuckerberg say that “at first blush” the idea that the company is or ought to be an information fiduciary “is intuitive” yet then dives immediately into a conversation surrounding the likability of the Facebook platform and landing on the generalized conclusion that “people choose to use it” [starting 3:55]. Whereas we normally think of fiduciary relationships in their classical sense (doctor-patient, solicitor-client), that type of relationship does not sit neatly in the “Facebook-User” context. Facebook, at the end of the day, is premised on utilizing user-generated data to sell things. That seems inherently at odds with the usual relationship of trust that fiduciaries exist in.
Secondly, it seems that the discussion surrounding transparency [starting at 58:50] also does not sit well with the concept of a Facebook-User fiduciary relationship. Zittrain posits to Zuckerberg the issue of whether Facebook would consider offering the ability to pay a premium in order to sidestep having ads pop up in the user’s news feed. Zuckerberg’s comment is “that is a hard no” [1:02:10]. My knee-jerk reaction to that is not one of surprise. Facebook’s operations are premised on the inordinate amount of revenue it collects from advertising. That said, the application of uniform policies to all users might be one of necessity in this instance. After all, paying for a different set of privacy controls could wind up being an issue in the long-run. If one person can buy their way out of viewing advertisements then they benefit from the lack of exposure compared to those who can’t afford (as opposed to those that would simply refuse to pay) for such a luxury.
While on its face this seems to be an adequate answer, it all comes back to costs. The premium that Facebook might assign to the ability to block ads would likely pale in comparison to ad revenue. The fact of the matter is that Facebook is not (at least at present) an information fiduciary. A user’s relationship with the company is not one of trust. It is one of lopsided capitalization. The user is granted free access to a repository of news feeds, pop ads, long-winded rants, and the ever-caustic comment section in exchange for the use and monetization of their online experience (i.e. data collection and sale).
So, why shouldn’t Facebook tell users how much advertising revenue their respective data generates on a daily basis? The short answer is, it doesn’t have to and at present it is probably more lucrative not to. Although this video was a fascinating look into the ramblings of one of the world’s most powerful CEOs, it is also riddled with the usual sort of corporate rhetoric that one (at least this particular cynic) expects from multinational corporations. Perhaps nowhere is this more clear than when Zuckerberg comments [at 10:35] that “we [Facebook] don’t want to show people content that they will click on and engage with but then feel like they wasted their time afterwards”. While that is a line that probably kills at press conferences and annual general meetings, in reality it is precisely what Facebook tends to do: give user-generated content away for free in the hopes that they will regret that decision and keep coming back for more.
I “believe” Facebook in the sense that it has the power to sell garbage back to the very people who produced it. What I find hard to believe is that it is at present a fiduciary in terms of the information it gathers, retains and sells.