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Fixing Facebook and Defending Democracy

Facebook took money from Russian sources to help Donald Trump defeat Hillary Clinton.

Facebook CEO Mark Zuckerberg speaks at F8 in San Jose, California, April 18, 2017. (Photo: Anthony Quintano)

Facebook recently acknowledged it received more than $100,000 from Russian sources to purchase ads intended to help Donald Trump defeat Hillary Clinton. While the actual amount spent on such ads may have been considerably higher, this is the amount the company itself acknowledges.

It’s impossible to know how much impact such ads could have, but there is no doubt that these were placed with the intent to deceive. The ads had phony sponsors; none of them indicated that they were funded by Russians, likely with ties to the government.

In the fallout from this disclosure, Facebook is doing the usual corporate Keystone cops routine, saying that they had no idea and couldn’t possibly police against this sort of misuse of their system. The Democrats, who get plenty of campaign contributions from the Facebook crew, immediately moved to demand ineffectual steps from Federal Election Commission (FEC), the most ineffectual federal agency ever created.

In the months ahead we can expect much troubled handwringing from pundits telling us how hard it is to police against this sort of abuse with a social network like Facebook. We will be told that this is just one of those inevitable problems of living with the Internet.

While the politicians in Washington may not want to find a solution that could be expensive for their Silicon Valley friends, it actually is not hard to devise a mechanism that would get Facebook to effectively police their system. We know this because they already do it to enforce copyrights. We just have to give Facebook the right incentives.

The entertainment industry realized very quickly that the Internet posed a major threat to copyright since it makes it possible to quickly and costlessly transfer recorded music, movies, and books anywhere in the world. This might have been a good argument for moving to a more modern mechanism for financing creative work, but the industry opted for a different route.

They used their political power to make everyone into copyright cops. The Digital Millennium Copyright Act (DMCA) made Internet intermediaries responsible for promptly removing any copyrighted material from their sites. Under this law, any intermediary must promptly remove potentially infringing material after they have received notice from the claimed copyright holder.

Note that this law requires the company to side with the person claiming copyright against their customers. We could have gone the same route as Canada, where the intermediary is required to pass on the notice to the person who posted the allegedly infringing material, but instead the US law makes the intermediary directly liable for infringement.

Furthermore, the potential penalties vastly exceed the actual damage. Streaming services like Spotify pay around 0.5 cents per play. Suppose a website allowed a twenty or thirty year old song to be posted for a few months on their site. If this song was downloaded 1000 times, the actual loss to the copyright holder would $5.

No one would have a big fight over $5, but the law allows for “statutory damages” which can run into the hundreds or even thousands of dollars. Furthermore, the copyright holder can also force the intermediary to pay attorney’s fees, which can easily be many thousands of dollars for even a simple case.

So we can be talking about costs running well into the thousands of dollars when the actual damage to the copyright holder might not have even been $10. Congress was willing to go to great lengths to protect its friends in Hollywood.

Now suppose Congress took democracy as seriously as the copyrights of Disney and Time-Warner. It can make it illegal to carry phony political ads, with statutory damages comparable to those for copyright infringement. This would mean that Facebook could be paying serious money every time it posted an ad from a phony source. That might help Mark Zuckerburg and company focus their thoughts.

And, following the example of copyright, it can allow the recipients of the ads to take the lead in the enforcement process so we don’t have to depend on the folks at FEC to decide to do something. There can be a process whereby a recipient of a fake ad notifies Facebook.

At that point, to avoid liability, Facebook would be required to remove the ad and notify all recipients that they had been sent a fake ad, unless of course it was able to determine that the ad was genuine. This would parallel the requirement in the DMCA that the intermediary side with the person claiming copyright infringement against their customer.

Undoubtedly there are problems that complicate the picture, just as is the case with copyright enforcement. But the key point is that the DMCA gives us a model that can be used against fake political ads. The question is whether Congress cares as much about protecting democracy as the profits of the entertainment industry.

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