Chasing Global Legal Particles: Some Guesswork about the Nature of Meta’s Oversight Board

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There is a contrast between the image of global law as something grand and the difficulty of spotting it, as if it were made of particles whose existence remains conjectural. Not a big surprise, one may say, given that there is no rule of recognition for global law. This post nevertheless tries to detect some such particles using as testing ground the Oversight Board that Facebook, now Meta, helped to establish.

There are good reasons for international lawyers to take a closer look at this singular institution. In academic turf wars, conjuring up ‘the global’ sometimes serves to dislodge international law doctrine on the grounds that its categories, allegedly too rigid and outdated, would make it unresponsive to the emergence of a new kind of law. In contrast, it is argued here that global law, as reflected in the Oversight Board’s features, falls within an iteration of time-honored international legal categories.

Neil Walker’s seminal Intimations of Global Law inspired (but is innocent of) the particle physics metaphor. For Walker, global law represents ‘the much less commodious category of law which operates at the external “global” edge of the transnational domain’ and since it ‘does not specify any particular source or pedigree’, it peeps out from that edge silently (at 18-19). The hypothesis I propose to entertain is that such silence about legal-system membership – a ‘key silence’ for Walker – is the distinguishing mark of global law, when accompanied by a discursive practice which has a plausible claim to planetary significance and whose semantics are distinctly legal. The Oversight Board seems to meet all these criteria.

What is the Oversight Board, Legally Speaking?

Since last year, the Board – a body of twenty outstanding individuals including a former prime minister, a former judge of the European Court of Human Rights, and a Nobel Prize laureate – sits at the apex of Facebook’s and Instagram’s content moderation systems. Its jurisdiction is currently limited to users’ complaints against takedowns of postings for which the company’s internal remedies have been exhausted. The conferral of jurisdiction over complaints against Meta’s decisions to leave up controversial content, announced last April, may have run into operational difficulties. No restrictions apply when Meta refers a case to the Board (as it did, eg, in relation to the Trump deplatforming affair).

In one year, the Board received over 850,000 complaints. It has so far selected 24 cases (it grants certiorari) and completed 21. The majestic pace at which it administers justice, in a style reminiscent of a human rights court, offers an arresting contrast to the breakneck speed at which routine content moderation has to travel. This dovetails with both the Board’s nickname – Supreme Court of Facebook (see here, at 101, and here) – and the amount of money that Facebook irrevocably devolved to it: $130 million for six years, a budget comparable to the International Court of Justice’s. The Board regards international human rights law as paramount and its rulings bind Meta. Under what law does this obligation exist, if any? A document called the Oversight Board Charter set it out. On what authority was such Charter promulgated? What is the Board, legally speaking?

Nothing but Global

Let it be stipulated that a legal entity which can be said to be de facto global, due to the scale or ambition of its regulatory output, is also global in a formal sense unless it owes its status to another legal system. The ICANN, for instance, would fail the test, because set up as ‘a non-profit public benefit corporation’ under Californian law. Unlike any other institution I am aware of, the Oversight Board – if one accepts that its public of roughly 3 billion people makes it de facto global – is also formally global, because it lacks legal personality under any other legal system.

Lawfare, which hosts a blog entirely devoted to the Board, describes it as ‘a separate legal entity from Facebook … structured as a “non-charitable purpose trust” under Delaware law’. An Oversight Board Trust has been in existence since 16 October 2019, but it should not be confused with the Board itself. Robert Post, the distinguished First Amendment scholar who serves as one of the five individual trustees under the Oversight Board Trust Agreement, summarized the situation under US law thus (here, at 22:16):

The Trust creates an LLC, a corporation, which in turn creates the Board, [whose] members […] are independent contractors to the LLC. [T]he Board itself doesn’t have legal personality, because it consists of independent contractors, and yet the Board, even though it lacks independent legal personality, is the locus of decision-making power and of independence.  

Set up by the Trust, the Oversight Board LLC, under section 2.2 of its constitutive agreement, deals exclusively with ‘the group of individuals who make up the Board’. Should one conclude from this that the Board is not a legal institution at all? This would be difficult to accept. Several legal documents refer to the Board as a body which, collegially and in accordance with complex procedural arrangements, interprets and apply contractual law (Facebook Community Standards, which the company’s Terms of Service incorporate by reference) as well as international law, in particular internationally recognized human rights.

As Maitland pointed out in his Sidgwick Lecture on moral and legal personality, ‘if men unite themselves in an organised body, jurisprudence, unless it wishes to pulverise the group, must see n+1 persons’. However, corporate personhood being a ‘legal fiction’, it is also necessarily the ‘gift of the prince’ – here Maitland followed the medieval jurist Luca da Penne (1325-1390) – since ‘[i]t is not for you and me to feign and to force our fictions upon our neighbours’ (here, vol 3, at 310, 316). Indeed, it took some kind of princely act to make of the Oversight Board a legal person. Let us now see who created it, where, when, and how.

The Making of a Global Institution

In a Declaration of the Independence of Cyberspace, promulgated in Davos on 8 February 1996, JP Barlow enjoined states – the ‘weary giants’ of political modernity – to keep out of ‘the global space we are building’. He saw cyberspace as ‘naturally independent [of states’] tyrannies’. Mark Zuckerberg, a boy at the time, would before long roll into that space as nimbly as a postmodern Machiavellian prince. Moonlighting as political theorist, he revealed, in 2017, that Facebook’s historical mission consisted in providing ‘the social infrastructure to give people the power to build a global community’. He and his entourage had meanwhile realized that social interaction in cyberspace was another way to make life nasty, brutish and short – calling forth a new kind of Leviathan.

In time, Facebook established a contract-based system of stateless justice where it was, and still is, at once legislator and judge. In the latter capacity, it screens the hundreds of thousands of status updates made every minute, with the help of artificial intelligence and an army of human operators who make rulings to the tune of one every few seconds. Unable to share jurisdiction to prescribe with its sprawling community, the company ended up devolving part of its jurisdiction to adjudicate to an independent entity, the Oversight Board.

Facebook, or its ruler, did not set up the Board though. They just enabled its establishment, by a document unveiled in September 2019 and fatefully named ‘Charter’. The Oversight Board Charter is not a corporate act, but a princely concession prefaced by a letter from Mr Zuckerberg to the public. Nor is it a founding act. The Charter is, by its own terms, ‘[t]he document that establishes the framework for creating the Oversight Board’. Hobbes had this to say about such acts:

Charters are … not Lawes, but exemptions from law. The phrase of a Law is Jubeo, Injungo, I Command, and Enjoyn. The phrase of the Charter is Dedi, Concessi, I have Given, I have Granted: but what is given or granted, to a man, is not forced upon him, by a Law. A Law may be made to bind All the Subjects of a Common-wealth: a Liberty, or Charter is only to One man, or some One part of the people.’ (Leviathan, at 200).

The ‘part of the people’ that Mr Zuckerberg empowered to set up the Board included dedicated staff from Facebook, the trust company (Brown Brothers Harriman) with which Facebook partnered to put in place the Trust and the LLC, the Board member-designees, the Director and staff of the Oversight Board Administration (formally a subdivision of the LLC), and the trustees appointed by Facebook. The Board’s existence as a legal institution supervenes upon the concerted practice of this ‘chartered community’. It is therefore customary in nature. And that explains the difficulty of precisely dating its creation. The Board was likely born after 3 June 2020, the day on which, from its brand-new website, an anonymous collective voice introduced it to the world as ‘an organization with a global scope’ in the process of being set up. The finalization of the process predates or occurred on 1 December 2020, the day on which the Board selected the first cases.

To recap, the Oversight Board is a person created under global law by the concerted practice of an elite licensed to so act by a global corporate power, still known as Facebook, and not to be confused with Meta Platform Inc., the legal person under Delaware law, to which nothing but the conclusion of the Trust Agreement is referrable. The enabling act, aptly denominated ‘Charter’, is an act performed under global law, not because it would match some validity criteria – global law has none – but because it cannot be traced to any other legal system.

The Oversight Board as a Small Power

Under the Oversight Board Charter, Facebook reserved the power to appoint the inaugural co-chairs of the Board (four people) and to select, in consultation with them, the rest of the current 20 members. In Georges Scelle’s post-World War I utopian sketch, a cosmopolitan legislative body appointed the members of an International Court from lists of candidates nominated by States, after which the Court would have become ‘totally independent’, ‘coopting its own members … from lists agreed by national supreme courts’ (here, at 105-7). Analogously, the Board, when the terms of its current Members expire, will be able to self-govern the recruitment process, under the formal authority of trustees whose main responsibility is to protect the Board’s independence (Art. 1.8 and 5.2 Charter).

It is true that Facebook appointed the trustees, but just as the Board members’ standing is a guarantee of their independence, so the choice of trustees – who include a former Chairman of the ICANN Board, the President of the IMF Administrative Tribunal and former Judge at the Constitutional Court of South Africa, and a former Dean of Yale Law School – was seemingly made to sharpen the separation between Facebook and the Board.

Facebook enabled the establishment and secured for six years the funding of a small potentate, a spiritual power, a guardian of the human rights shrine in cyberspace. I use the term ‘power’ to denote a position within a specific politico-juridical space – that of social media governance hegemonized by Meta – but not in a metaphorical sense, as one would do in saying that Human Rights Watch is a ‘power’ (although, unlike the Board, it lacks lawmaking authority) or that the ICJ is a ‘power’ (although, unlike the Board, it is organically part of a larger institutional complex). What Mr Zuckerberg did was no act of magnanimity. The Board’s work could well contribute to entrench Meta’s hegemony. As is customary between powers, Meta and the Board can be at once adversaries and allies. Interestingly, last October, the Board spontaneously granted audience (asylum, in a way) to Frances Haugen, the former Facebook employee turned whistleblower, ‘[i]n light of the serious claims [she] made about Facebook’.

That was a bold move, which only an institution to which Facebook subjected itself could have made. This act of subjection – Facebook’s commitment to consider the Board’s rulings mandatory (Art. 4 Charter) –  is the cornerstone of the legal relationship between Meta and the Board under global law. According to Professor Post, Facebook’s promise is ‘a contractual commitment, it can’t be anything else’ (here, at 23:16). The obligation does exist under US law vis-à-vis the users and the participants in the Trust, if ever other companies join the mechanism (sec. 2.2. of the Trust Agreement), but not in relation to the Board, which is not a legal person under US law.

What if Meta fails to implement a Board’s ruling? Under domestic law, no means of redress would be available to either the Board or its individual Members, who have a contractual relationship with the Oversight Board LLC only. The kind of obligation that Facebook, or rather its ruler, contracted with the Board members becomes apparent in a momentous conversation between Mr Zuckerberg and Helle Thorning-Schmidt, the former Prime Minister of Denmark and future co-chair of the Board, as reported by Kate Klonick:

Thorning-Schmidt […] told me, ‘I needed to know this would be independent from Facebook and Facebook would commit to following our decisions’. She met with Zuckerberg and asked that he give his word: ‘I had to hear it from Mark Zuckerberg myself. And he said yes’.

The reputational consequences of breaking such promises constitute the chief guarantee that Meta will fulfil the obligations it owes to the Board under global law. Should it fail to do so, the stage would be set for retaliation, as is customary between powers. The Board’s decision to open its doors to Ms Haugen, who is causing Mr Zuckerberg no small amount of trouble, can be construed as an unfriendly act. Should it ever come to reprisals, the relationship between Meta and the Board would have deteriorated to such an extent as to call the viability of the oversight mechanism into question. Much will depend on how the Board administers its symbolic capital in the next few years. The more the Board strengthens its reputation, the more trying to wind it up would harm Meta’s goodwill.

Six years may not be too little for the Board to consolidate its already unique position in the field social platform justice. The Board might survive Meta’s second thoughts about the usefulness of supporting a countervailing power and even the dismantlement of the private law structure that currently makes the system work – a decision which, in any case, Meta could not make alone (sec. 7 and 9 Trust Agreement and sec. 8.1 LLC Agreement). While the dissolution of the Trust and the LLC is provided for in their respective instruments of incorporation, the decommissioning of the Board is not. After all, there exists no such instrument for it. And if Meta ever decides to shed the Board, perhaps international law could embrace it.

Bridging the International and the Global

What has been said so far suggests that a thin line separates global law from international law: the importance of customary law, to which the Board owes its existence, the decoupling of adjudicative and enforcement jurisdiction, the specter of retaliation, the salience of human rights law – everything points to a fundamental similarity between global law and international law. But the most significant point of analogy and potential connection is personhood.

The failure to incorporate the Board under US law was not an oversight but a central element of an elaborate regulatory strategy. It was not a matter of leaving the law behind – everything in this ongoing process speaks the language of law – but rather of locating certain relations in a domain of the law which, also in strictly formal terms, is neither domestic nor international. The claim that the Board is a person under global law necessarily rests on mere indicia: there is no register of incorporated entities from which conclusive evidence could be extracted. But the same is true of international law, where questions of personhood may well remain open and controversial.

As the ICJ famously clarified in 1949, international legal subjects ‘are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’. By enabling the establishment of an independent institution in a sector of global law it hegemonizes, Facebook interpreted the needs of a vast and growing community through a predominantly top-down constitutional process (I understand my reading of that process as a historical-empirical confirmation of the theory of social constitutionalism expounded in Golia and Teubner). Judging by the number of appeals, the community is responding positively. The Board is itself pursuing an assertive public diplomacy, unusual for most judicial body but perhaps suited to the unprecedented challenge. How will international law and its community react?

In a radical reappraisal of the concept of international organization, Golia and Peters suggested that ‘international law as part and parcel of a global legal landscape necessitates the concept of a global organization’ (at 17). Why not have, in addition to the concept, the thing itself? Interviewed by Politico, Ms Thorning-Schmidt confessed: ‘In my ideal world, something like the Oversight Board should have been created by our multilateral organizations, such as the UN’ (here, at 20:05). In the non-ideal world in which we live, the UN Human Rights Council may perhaps make of the Board an international legal subject by granting it observer status. That would be a modest entitlement and yet one that, by bridging the global and the international institutional spaces, would strengthen the Board’s position vis-à-vis the global corporate power that fostered its creation but could one day threaten its survival.

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