Facebook’s big stick diplomacy

Jesse Hirsh

easyDNS is pleased to sponsor Jesse Hirsh‘s “Future Fibre / Future Tools” segments of his new email list, Metaviews

Not that they ever speak softly

Pandemic notwithstanding, international diplomacy has seemingly devolved to a tone and tenor that greatly resembles the original maxim that might is right. At least as far as Facebook’s concerned.

They seem to be embracing the Teddy Roosevelt policy of “speak softly and carry a big stick.” We saw this a few weeks ago when Facebook threatened Australia in response to legislation that would tax Facebook for news links posted on the platform.

Now we’re seeing it again, with an even larger threat, that Facebook may leave the EU if the company is not able to have open data traffic between Europe and the US?!

In a court filing in Dublin, Facebook said that a decision by Ireland’s Data Protection Commission (DPC) would force the company to pull up stakes and leave the 410 million people who use Facebook and photo-sharing service Instagram in the lurch.

If the decision is upheld, “it is not clear to [Facebook] how, in those circumstances, it could continue to provide the Facebook and Instagram services in the EU,” Yvonne Cunnane, who is Facebook Ireland’s head of data protection and associate general counsel, wrote in a sworn affidavit.

The decision Facebook’s referring to is a preliminary order handed down last month to stop the transfer of data about European customers to servers in the U.S., over concerns about U.S. government surveillance of the data.

While this is a long running dispute, it does show an escalation in the kind of tactics the company is willing to use.

It also comes at a time when the relationship between these platforms and nation states grows increasingly contentious.

The US for example continues to tangle with China over the ownership of TikTok and the growing power of WeChat. India has banned both apps along with dozens of others in an ongoing conflict with China. And Europe has been working to reign in the US digital platforms operating in their jurisdiction for years.

This particular dispute over data flows between the US and Europe reinforces a subject we touched upon yesterday, that privacy is collective, and the best means of protecting an individual’s privacy is on the collective level, as the EU is trying to do in this instance.

However where TikTok is scrambling to figure out how they can satisfy multiple regulatory authorities and nation states, is Facebook really thinking they can just close shop in Europe and ignore one of their largest markets?

While it certainly does appear like a bluff, the argument that this exposes the simplicity and vulnerability of their business model is valid. Is Facebook resorting to desperate threats because they face desperate times if these proposed regulations move forward?

One of the risks in making such wild threats, is that you inject the idea into the realm of possibility, and potentially give fodder or fuel to your critics who will use such rhetoric to help people imagine just such a possibility:

What would happen if those 410 million users were to find, from one day to the next, that they could no longer access Facebook?

The answer is very simple: they would find any number of alternatives. Facebook is not available in China. Is that a problem? No, because people there use other platforms to keep in touch with friends and family, share content or access information. In fact, the exclusion of Facebook from China has had precisely the effect that the Chinese government wanted: to encourage the emergence of local competitors who understand the Chinese market and who are willing to kowtow to Beijing’s demands to access user information.

Here in Europe, the situation is the opposite: what the authorities want is for Facebook to stop hoovering up data from its citizens and exporting it to the United States. This is a perfectly reasonable request, one that fundamentally reflects the very important difference between data protection for users on either side of the Atlantic.

This falls under the “don’t think of an elephant” principle which inevitably results in your imagination conjuring an elephant. On the one hand, by Facebook making such threats they undermine their perceived position as being indispensable. However on the other hand, in making such threats, Facebook is exerting its power, and if successful, that power continues to grow.

Which is why it is significant that a company continues to threaten nation states, especially when the nature of those threats is escalating.

Although the irony in this case, is just how quickly the company backed down from the threat, in an attempt to offer some nuance.

Facebook’s head of global policy has denied the tech giant could close its service to Europeans if local regulators order it to suspend data transfers to the US following a landmark Court of Justice ruling in July that has cemented the schism between US surveillance laws and EU privacy rights.

Press reports emerged this week of a Dublin court filing by Facebook, which is seeking a stay to a preliminary suspension order on its EU-US data transfers, that suggested the tech giant could pull out of the region if regulators enforce a ban against its use of a data transfer mechanism known as Standard Contractual Clauses.

The court filing is attached to Facebook’s application for a judicial review of a preliminary suspension order from Ireland’s Data Protection Commission earlier this month, as Facebook’s lead EU data supervisor responded to the implications of the CJEU ruling.

“We of course won’t [shut down in Europe] — and the reason we won’t of course is precisely because we want to continue to serve customer and small and medium sized businesses in Europe,” said Facebook VP Nick Clegg during a livestreamed EU policy debate yesterday.

This is the paradox of Facebook being as large and arguably essential to so many people. While they want to threaten governments on the one hand, they also want to assure the residents of those markets that their business is safe on Facebook. There are of course many thousands and maybe millions of small businesses which have invested their communications and marketing onto this platform, and if it were to disappear they’d face significant disruption.

Hopefully this little (ongoing) incident would be enough to incentivize them to diversify or at least investigate alternate options, but tragically that’s doubtful. The nature of monopoly is that you take it for granted until it’s too late.

Will that dynamic be similar when it comes to the upcoming US election?

Facebook says it could aggressively restrict content if the US presidential election sparks violent unrest, according to the Financial Times. Global affairs head Nick Clegg told FT that Facebook was looking at “some break-glass options available to us if there really is an extremely chaotic and, worse still, violent set of circumstances.”

Clegg didn’t discuss what those options were. But he mentioned Facebook’s past use of “pretty exceptional measures to significantly restrict the circulation of content on our platform,” deployed in countries where there is “real civic instability.” An unnamed source said the company had modeled 70 election outcomes and how to respond to them, relying on staff, including “world-class military scenario planners.”

Facebook (among other social networks) has tried to preempt concerns about misinformation, election meddling, and potential calls to violence around the presidential election. It announced in early September that it will stop accepting political ads in the week before Election Day, and it’s promoting its own Voter Information Center with authoritative information about how to vote.

Facebook will also place an informational label on posts that cast doubt on the election’s outcome or prematurely declare victory — an issue that could crop up if large numbers of people vote by mail due to the COVID-19 pandemic, particularly because President Donald Trump has baselessly claimed that mail-in votes are fraudulent.

Once again it’s Nick Clegg who speaks for the company, globally, as Chairman Mark and deputy Sandberg have less credibility among both the public and political elites.

What is significant, when it comes to how the company describes its role in upcoming elections, and in how it is now negotiating or communicating with nation states, is that the language used reflects an emerging acknowledgement of Facebook’s power.

Is the company finally coming into its own sense of responsibility? Or is the company reaching awareness of its power and capability? At what point does the shadow government lose it’s shadow?

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