I am delighted to introduce a guest post today by Johann Morri, a judge at the Administrative Court of Versailles, in France. He studied law both in France and in the United States, where he was a law clerk for a Federal Judge in the District of North California for several months. He also served at the French Ministry of Economy, Finance & Industry, where he led the international law office within the Department for Legal Affairs.

In the article below, Judge Morri has written a summary (with the author’s permission) of a 37-page article, Facebookistan¹, by Professeur Anupam Chander.  I’m sure you will very much enjoy it, and we look forward to your comments!

* * *

“Who rules Facebookistan?” was the slightly provocative question asked by Professor Anupam Chander (University of California, King Hall School of Law, Davis) in his article devoted to the famous social network. With 845 million users, Facebook would, demographically, be one of the largest countries in the world. ‘Would be’ because, whilst State terms describing some of its activities or features – such as its own currency, sending ‘diplomats’ as representatives to meet governments, etc. – are being used more and more, it clearly lacks some of the key attributes of a State under international law – starting with having a territory.  However, even if it is not a State-nation, Facebook poses unprecedented questions regarding governance and the sovereignty of States.

As Professor Chander demonstrates, Facebook is a multinational like no other. Of course Facebook is “hardly the only corporation with substantial power over people’s lives”. The history of capitalism offers many examples of companies that accumulated considerable power over millions of people: from the East India Company to the great multinationals of the 20^th century, for which Alfred Chandler would use Thomas Hobbes’ term “leviathans”.

However, Facebook has unique features that set it apart from its forerunners. On the one hand, the quantity of personal data that it has managed to acquire for a substantial portion of humanity – around one tenth of the population of the five continents – is almost unprecedented. It is unlikely that any private database or police files have ever collected as much data about so many people, in all walks of life, and on such a large geographical scale. On the other hand, the way in which it allows individuals to contact each other, with no other intermediary apart from the network, raises many challenges – and distinguishes it from other Internet giants that offer more limited potential interaction.

It isn’t surprising, in these circumstances, that State-nations have tried to take matters in hand and regulate Facebook’s activities. Prof. Chander distinguishes at least four key reasons for these attempts at regulation made by States:

• data protection and privacy
• to frame or limit freedom of expression
• to regulate freedom of association
• economic regulation.

Have these efforts been successful? Prof. Chander invites us to take a whistle-stop tour of the attempts made, which have had varying degrees of success: United States, Germany, Austria, Ireland, France, and Canada. These liberal democracies have tried to enforce rules on the use of Facebook by its members or on the use by the network of data collected about its users.

Some of these States boast significant results, such as the United States, where the Federal Trade Commission obtained, by amicable settlement, an agreement whereby Facebook would subject itself to a biannual independent audit of its privacy and data security practices.

In Canada, the Privacy Commission also achieved the implementation of some of its recommendations – including for American users! However, Canada had to resign itself, under pressure from social networks like Facebook, to abandon rules in force since 1938 prohibiting the publication of partial election results so as not to influence voting in States where, owing to time differences, ballots were still open.

As might be expected, dictatorships and authoritarian regimes have not remained by the wayside in making attempts to regulate or curb Facebook’s activities. The article gives several examples, starting with the symbolic case of the Popular Republic of China, which has blocked access to Facebook since the riots in the province of Xinjiang in July 2009.

Nevertheless, recent history, and particularly the Arab Spring, also shows that Facebook can be a powerful tool in undermining authoritarian regimes that are sometimes unable to contain the anti-establishment outbreaks that are expressed through social networks.

To sum up, attempts by States to regulate the network have been mixed. Facebookistan is neither self-sufficient, nor an independent republic with closed borders – the network has had to reach a compromise with national authorities on several occasions. However, the authorities have sometimes been forced to back down when faced with a more powerful adversary – as demonstrated by the change in Canadian law on opinion polls and election results.

The last section of the article describes the “Jurisdictional Dance” surrounding Facebook – the complexity of asserting the power of jurisdictions and/or national laws over an entity that is everywhere and nowhere at the same time, with decision-making centres that are delocalized but with local consequences to its actions. For Europe, in particular, the article stresses that the Facebook’s official line – that it considers itself to be governed by the laws of Ireland for all of its operations, that being the location of its European headquarters, would have the effect of subjecting it to the laws of a State that is little inclined to enter into any conflict with the social network, whose presence on Irish territory has a considerable economic impact, and represents a attraction for other investors.

After this review, the author moves from analysis to forecasts, and asks us the following question: Who should govern Facebookistan? There are at least five alternatives:

• regulation by the country of origin – the United States and, within it, California
• regulation by countries of reception – the network’s users’ home countries
• regulation by the rules and authorities resulting from an international treaty
• self-regulation by the company itself
• the network’s users.

All of these alternatives have weaknesses. User regulation may seem attractive, but is currently limited due to the absence of a real alternative to Facebook. This means that it is not easy to leave the system and protest against the rules imposed by the firm. In many countries it has become an institution – except in regions of the world where it has a competitor, often almost a monopoly itself (China, Brazil, Russia). Those who leave the network often return when they see that there is no equivalent that allows them to stay in contact with their ‘friends’ (in Facebook jargon).

In conclusion, the author notes that whilst the laws of the various States have had a significant impact on the operations of the social network, it has nevertheless won key victories in disputes with some of these States. Regarding the question of whether nation-States or Facebook rule Facebookistan, the author has provided, for the moment, a cautious answer – a bit of both.

* * *

You might also be interested in listening to “Life in Facebookistan“, from the show “On the Media” broadcast by National Public Radio (NPR).

.

¹ The original article by Professor Anupam Chander was published in the North Carolina Law Review, Vol. 90, p. 1807, 2012. It is available here from SSRN.

Note: This article was first posted in French on the blog Le mot juste en anglais and was translated by WordstoDeeds.