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the digest  May 2020

What can we expect from Facebook’s Oversight Board?

Since Facebook first set out its “blueprint for content governance” in November 2018, we’ve followed the development of its Oversight Board closely

Now, everything is more or less in place: the first slate of members is announced, some questions have been answered, and an appropriately sober-hued Twitter page has been unveiled to the public. We went to Evelyn Douek—expert on all things content governance—to get her reflections on what it all means; listen to our conversation here.

The initial media response was predictably mixed. John Naughton’s Guardian comment piece is a good representation of the sceptical position. For those who see the Board as a good faith—if imperfect—attempt to address the content governance challenge, questions remain about how it will operate in practice. (We set out some of these in our response to the final Charter.)

Shortly after the Board’s launch, a bigger story emerged: Twitter’s decision to impose a content warning on a tweet by US President Donald Trump which “incited violence”. Facebook didn’t follow suit on the equivalent post on its platform: with CEO and founder Mark Zuckerberg explaining his reasoning in a public statement 18 hours later, following a “productive” phone conversation with the President. In response, some Facebook employees staged a virtual “walk-out” and called on the Board to make a judgement on the decision. 

The Board isn’t currently operational; it’s set to begin hearing cases later this year. But even if it had been up and running, could it have done anything?

Under the current bylaws, the Board—at least in its initial form—would only have the authority to review cases in which Facebook had taken down content, not left it up—a vulnerability
consistently raised by Evelyn Douek. A wider remit (including the power to rule on “left up” content, the platform’s wider policies, and advertising) has been promised at an unspecified point in the future—which could be years from now. After this week, Facebook may want to look at bringing that forward...

Cybersecurity

This month, the UN Security Council convened a fully virtual meeting to discuss cyber stability, cyber norms and international law in cyberspace. 

 
The “Arria-formula” meeting (meaning it was informal and convened at the initiative of a member state) was led by Estonia, who currently hold the Presidency of the Security Council and co-organised with Belgium, the Dominican Republic, Indonesia and Kenya. 

Some quick takeaways:
  • There was broad support for the application of international law (including humanitarian and human rights law) to cyberspace. Most states held that this rights framework was sufficient; while Egypt and Eritrea called for new frameworks, and Tunisia mentioned the possible need for new norms.
  • As our friends at Human Rights Watch pointed out, there was welcome recognition of the links between human rights and cyber stability and security from a number of states (including Belgium, the Netherlands, Ecuador, Mexico and Japan)—although only one permanent member of the Security Council (France) mentioned human rights in its statement.
  • States repeatedly mentioned the need to “punish” violations of international law and cyber norms in cyberspace—with many highlighting the urgent need for attribution and accountability for cyber attacks carried out by states. 
  • COVID-19 and its implications for cybersecurity and stability were (unsurprisingly) a core theme of the meeting—see Allison Pytlak’s comprehensive overview for more on this.
  • Many states vocally championed the inclusion of non-governmental stakeholders. At the same time, few such stakeholders were actually in the room. Other Arria-formula meetings focused on gender have managed to do better—we should expect the same from discussions on cybersecurity.
  • The event did, however, see active participation from a diverse range of states, including from the  global South. Those who participated more or less mirrored those who have been active in the Open ended Working Group (OEWG), barring the notable absence of Russia over a political dispute.
A few other pieces of intel we picked up:
  • The International Criminal Court (ICC) is working on a report on how the Rome Statute (the treaty that established the ICC) applies to cyber attacks. This is scheduled to be presented in December.
  • Based on an intervention by Germany, the third and final meeting of the OEWG could be postponed to sometime in Spring 2021, pending further negotiations with states.
Overall, the meeting served as a useful “refresher”,  continuing the discussions that have been taking place in the Group of Governmental Experts and the OEWG—particularly welcome since the OEWG virtual informal negotiations on the revised pre-draft and non-paper of the OEWG report are not open to civil society (although the Chair encouraged delegations to study civil society contributions in his latest letter to member states).

But this Arria meeting doesn’t count as a formal set of discussions—and the OEWG still has a long way to go to finalise its report. Will it be able to pull it off, without the ability to hold in-person meetings? We explored this question in a recent episode of our In beta podcast. 

On our radar for next month: 
  • The virtual negotiations with member states that are meant to replace the informal negotiations will take place from June 15-19, according to the programme of work published on the OEWG webpage this month. 
  • More information on the plans for the third and final meeting of the OEWG should be coming. Will it be postponed or not? Watch this space...
  • The Australian Department of Foreign Affairs and Trade has launched an open consultation on the international dimension of its cybersecurity strategy (deadline: 16 June).
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