Thread by @bechamilton

My legal scholarship rarely coincides with a news cycle. So working on my latest revision of Platform-Enabled Crimes as the #FacebookFiles dropped has been surreal: papers.ssrn.com/sol3/papers.cf… @jeffhorowitz @amnestytech @keachhagey @lpolgreen Buckle up for a long thread (1/24)

Platform-Enabled Crimes: “Each day, across the globe, the corporations that run these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement.”(2/24)

“Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes; yet online intermediaries are almost never held to account for their complicity in the resulting harms.” (3/24) @julie17usc @nicsuzor @Barrie_Sander @Nanjala1 @nattyray11

“This Article introduces the term and concept of platform-enabled crimes into the legal literature to draw attention to way that the ordinary business activities of online intermediaries can enable the commission of crime.” (4/24) @AUWCL @ProfFerguson @ShannonRSingh

“Without the perpetrators, the policies and practices of the online intermediary may have been innocuous…” (5/24) @evelyndouek @ubiquity75

“but without the policies and practices of the online intermediary, the perpetrators could not have inflicted harm of the nature and on the scale that they did.”(6/24)

Why do I think it is useful to talk about certain policies and practices – like Whitelisting or Xcheck discussed in the #FacebookFiles (or the many other policies and practices yet to be discussed in a public forum) by invoking the language of “crime”?(7/24)

For the same reasons that over 80 years ago Edwin Sutherland believed it was important to introduce the concept of “white collar crime” into our lexicon for discussing under-scrutinized corporate activities more than 80 years ago.(8/24)

I should be clear that my argument for using platform-enabled crimes for rhetorical purposes does not mean that we must (or should) always (or ever) use criminal law to respond.(9/24) @jenny_domino papers.ssrn.com/sol3/papers.cf…

But the language of crime helps maintain the connection to the harm that is too often getting lost.(10/24)

Within the frame of “Business & Human Rights” the harms that the ordinary policies and practices of platforms can enable, become disconnected from the lived experience of the trauma they cause(11/24)

Harms are transformed into the sterile language of corporate reporting, with a steadfastly forward-looking focus on the platform “learning” and “doing better”(12/24)

Meanwhile the lived experience of harm is discounted by the use of the past tense and by being positioned as mere "background context."(13/24)

The concept of platform-enabled crimes brings the harm survivors experience back to the center of the conversation. You can think of this in terms of the first #FacebookFiles case of soccer star Neymar(14/24)

Facebook’s response to concerns about XCheck reads: “We have new teams, new resources and an overhaul of the process that is an existing work-stream at Facebook.”

https://twitter.com/andymstone/status/1437463552755908620

(15/24)

That’s a very different thing from Facebook acknowledging that its policy enabled a powerful man to commit revenge porn on such a scale that a women had nude photographs of her viewed over 50 million times without her consent.(16/24) @daniellecitron @ma_franks

There is nothing inherently criminal about XCheck – or indeed any of FB’s policies and practices I have looked at. Typically such policies arise organically from a reasonably well-intentioned, or at least facially justifiable place(17/24)

– albeit one that exists within a narrowly construed worldview: papers.ssrn.com/sol3/papers.cf… (18/24)

If I had to give one word to characterize most of Facebook’s polices and practices that end up enabling direct perpetrators to commit crimes it would be “thoughtlessness.”(19/24)

They failed to think – to IMAGINE – the harms that could result. And then failed to update once they saw the results. (20/24) @EthanZ @bernstein @ceciliakang @itsjina @amandataub @Max_Fisher

I hope the concept of platform-enabled crimes can serve as a cognitive “primer” to spur ex ante consideration of what happens if/when the policy or practice enables harm.(21/24)

There is a huge accountability gap for platform-enabled crimes. My paper addresses this gap with respect to the subset of platform-enabled crimes in which the policies and practices of social media companies enable direct perpetrators to commit atrocities like genocide.(22/24)

But there is much work to be done more broadly in this awkward space, where neither BHR nor criminal law make a particularly good fit for what we are seeing…(23/24) podtail.com/en/podcast/cam…

…and where progress is likely to require the simultaneous pursuit of all the tools in the toolbox, including regulatory, civil, and non-legal mechanisms.(24/24)

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