Social media regulation: An old media precedent and a proposal

“Zuck_CNN”In a long overdue interview, Facebook CEO Mark Zuckerberg apologized for the data misuse of more than 50 million user profiles. He also conceded, surprisingly, that some kind of regulation of Facebook may be necessary. There’s a lot of activity on the regulatory front after the revelations of the past few days. Legislators are investigating and pundits are floating remedies for our social media data privacy woes. In some ways, the crisis of new media harkens back to the first crisis of electronic media more than 100 years ago.

In the earliest days of radio, the hot, new medium was attracting enormous interest with eager new broadcasters jumping in as fast as they could build towers and plug in microphones. It soon became apparent that regulations would be necessary to avoid signal interference between broadcasters and create a fair marketplace. Up to that point, whoever had the biggest tower and most power would drown out all others. Chaos on the airwaves ensued. Radio had run headlong into the scientific reality of a finite electromagnetic spectrum.

FRC_logoThe Radio Act of 1912, followed by the Radio Act of 1927, instituted a federal licensure regime over broadcast that holds to this day for the radio and television industries. The legal theory is summed up well by this portion of the Museum of Broadcast Communications web site: “The airwaves … because of their limited availability on the broadcast spectrum, are considered a finite public resource that is ‘owned’ and regulated by the Federal government on behalf of the American people.”

This finite resource is regulated based on how it is legally defined. Print media, on the other hand, does not require licensure to engage in, as ink and paper are legally viewed as infinite resources (reestablished in the modern era in Near v. Minnesota, 1931). The first amendment reigns supreme over print, which is why one should remember to never pick a fight with someone who buys ink by the barrel.

Radio also rapidly transformed into a commercial medium—from an original business model of selling technology (RCA radio sets), to selling air-time and sponsorship to advertisers to access the listening audience. Programming adapted from attracting consumers to assembling a reliable mass audience to commodify. The model was in place when television came along, and held in place until the advent of directly consumable programming through VHS, DVD and the Internet streaming of today. Even so, broadcast still has a place in our media ecosystem, and this doctrine of the electromagnetic spectrum as public asset is embedded in the core mandate of the FCC and has been repeatedly upheld by the courts.

This old media precedent should inform our current new media predicament. Any regulation of Facebook needs to cut to the bone of contention: The ownership and control of user data. How we legally define this quantity must determine the nature of how we regulate any technology platform that seeks to harness it to a business model. Much like broadcast spectrum, user data is a finite value. While it grows over time with population and user base, it is not infinite. A human being will only ever produce X amount of finite data about themselves in a lifetime. User data is also not adequately defined as free speech. While the expressions of messages are speech, choice-driven data is a combination of factors—some would be defined as free speech (such as a Facebook “like” or Instagram post), and some of it is something else entirely (clicking on a link or taking a quiz is more like using the turn signal on a car than anything close to free expression). More importantly, is the collecting of those social data points into a database and platform that generates profit, free speech? Facebook would like people to believe that by virtue of their user agreement, they co-own this information but the history of mass media regulation indicates this does not have to be so. Several entrepreneurs that invested money in powerful radio transmitters prior to 1912 were not happy when the radio act shifted their access to the spectrum to a licensing platform. Radio monopolies were effectively annulled (at least, at the time).

This is the proposal: Make social media user data a licensable commodity that is considered the property of the people that originated it in the first place.

Regulate social media around the core engine of their business plans—access to the user data commodity, just as radio is regulated through access to the mass audience commodity of broadcast. It’s a deceptively simple idea, and likely will be incredibly challenging to realize. But it’s the right starting point.

I wholly agree with Mark Zuckerberg’s statement during his CNN interview: “I think the question is more what is the right regulation rather than ‘yes or no should we be regulated?’” This is encouraging to hear from him but I’m not sure he would like this proposal. It’s going to cost money—not a good look for shareholders. But considering the stock market slide they’ve been on in the past week, Facebook shareholders need to adopt long-term thinking.

If we are to effectively regulate social media (and Facebook), we must get the this right from the start. I submit that a licensing model and a legal definition of user data as a public asset is foundational to any workable regulatory system for social media.

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