A Dangerous ‘Beast’: FTC Should Restructure Facebook

Articles

For a tool that originally connected people and helped topple dictatorships, it’s a crippling insight into human nature that such a revolutionary good can become a weapon. Perhaps more sharp is this adjective: “Facebook has now turned into a beast,” according to United Nations special rapporteur for human rights Yanghee Lee.[1] In submitting a report to the Human Rights Council in early March 2018, Lee expressed concerns over the media giant’s role in the ethnic cleansing and mass refugee crisis of the Rohingya Muslim people group in Myanmar. The crisis, in which Time reports nearly a million have fled to neighboring countries since August 2017 and at least 6,700 were slain last year, was “substantively” fueled by the promotion of violent content and hate speech on the network.[2] A chairman of the U.N. fact-finding mission into the crisis condemned Facebook for being the medium in which acrimony spread between the persecuted and a party of ultranationalist Buddhists. [3]

The Rohingya Crisis, a despairing yet foreign situation, warns the United States of the potential ills in social media and illuminates the present danger in them, specifically Facebook. CEO and co-founder Mark Zuckerberg has said before that he doesn’t want his company “to be arbiters of truth ourselves, but instead rely on our community and trusted third parties” in a Facebook post on censoring misinformation and extremist content.[4] Yet, it already is such – that is, an arbiter of truth. Curating what users deliver to the platform (even algorithmically) and what appears in the News Feed is, essentially, an editorial board. Therefore, Zuckerberg’s behemoth is a media entity rather than the untouchable distribution channel it wishes to be. With such force and influence, Facebook has a treasury of unguarded power and is open to abuse. The Federal Trade Commission (FTC) needs to fundamentally restructure Facebook on the grounds of antitrust law as outlined by the Open Markets Institute, and the remainder of this paper will argue thus. As the necessary medium of communication Facebook is today, it’s imperative the platform, with all its power and data, not be an uncontrolled beast but a domesticated one.

Section I: Steps to Restructuring the Monopoly

The Open Markets Institute has provided a broad guideline “to address Facebook’s dangerous levels of monopoly power” – unmanageable power, that is.[5] An otherwise unknown nonprofit that supports vigorous antitrust enforcement, Open Markets has made headlines in recent months through the publication of their executive director, Barry Lynn’s, op-ed with The Guardian. He admits the “idea the FTC might take dramatic action against Facebook may strike many observers as laughable,” yet such a fate is indeed plausible.[6] Before explaining the reasoning for undoing this media Goliath, reviewing the nonprofit’s nine-point solution from its 22 March 2018 press release will prove helpful background in what restructuring may look like before going forward.

Overview of Potential Federal Actions against Facebook

The Open Markets’ solution is in full detail on its website, but for ease of reading the nine points categorize into three parts concerning potential action by the FTC: ethical, corporate, and legal. Under the ethical, the FTC should consider (1) imposing strict privacy rules, (2) ensuring transparency in political advertisements like other major communication networks, and (3) requiring Facebook to adopt transparent standards. Of the corporate route, which hits the heart of this paper’s purpose, there are again three points: (1) part Facebook’s ad network into a separate, independent entity; (2) reverse the acquisitions of WhatsApp and Instagram; and (3) prohibit, for a limited period of time, future acquisitions.[7]

The last part, what are particularly legal actions to be pursued by the FTC, concern a 2011 consent decree Facebook may have violated. The network signed the decree with the agency to ensure users give their express consent for their data to transfer to outside parties. Investigation is still under way, but it is possible this agreement was broken in light of the recent Cambridge Analytica scandal taking place after the decree, wherein the firm harvested the data of up to 87 million users without authorization.[8] By this scandal, the legal actions are: (1) seek court sanctions if Facebook is in violation, (2) threaten further action against top executives if there is a lack of cooperation in restructuring, and (3) pursue personal fines against top executives if they had a hand in violating the decree.[9] These nine points will be explored further in Section V after seeing some background behind these actions.

Section II: Revealing Facebook’s Anticompetitive Nature

To return to a beginning statement, Facebook is not a social media network alone but a media entity worthy of strong regulation and an antitrust case. There is a basis in competition law for the FTC to domesticate the ‘beast’.  Network effects and other barriers to entry typically characterize the present dominance of an entity within a market, and Facebook certainly matches the profile. Whether direct or indirect, the network effects – wherein a product gains more value as more people use it – of Facebook are apparent, but more subtle is its anticompetitive behavior surrounding its market power. As competition law researchers Aleksandra Gebicka and Andreas Heinemann point out, “dominance is not anticompetitive in and of itself, [yet their] business strategies have to be assessed.”[10] (Though Gebicka and Heinemann review law at the University of Zurich in Europe, it’s worthy to note they also examine a potential antitrust case in the US.) In identifying these exclusionary strategies, they name several: onerous account deletion, bundling products and services, addictive design, and modifying administrative aspects.

Four Examples of Anticompetitive Abuses

To deactivate your personal Facebook profile, the process is burdensome and takes advantage of the dark side of user experience design to complicate each step. Deletion, in fact, is impossible; one can always reactivate their profile and their data is, essentially, forever on Facebook’s servers. Would this not be an “unfair trading condition” under competition law? The “unreasonably long duration of contractual relationships” between the user and the platform make “the limits of an appropriate contract term seem to be overstepped.”[11] Furthermore, “Facebook is almost patronizing in its insistence that you really want to stay or really want to come back,” and thus, “prevent users from migrating to a competing” platform.[12]

Second of these exclusionary practices is bundling: Facebook is a package deal with all its features – posting, messaging, photo and video, auctions, third party applications, and even a payment service. While other websites and their services aren’t restricted to the average user, users are encouraged to remain on the site. They need not venture to Skype when they can use Facebook, nor use apps like Venmo for mobile payments. And like one’s profile, these features are permanent. What is deceptive as Facebook dominates the social media market and all other digital services similar to these features is its free-to-use model. Users aren’t forced upon these features, they voluntarily sign up. With that backdrop, Facebook appears untouchable in competition law because it exists outside price-based tests for market dominance.[13] It doesn’t fit the traditional profile of the old monopoly, because with new media it is a new monopoly. The next section will serve to confront this obstacle and others.

Third of Facebook’s abuses contributing to its de facto monopoly is its user interface, designed to be addictive. Perhaps this point is most popularly known, with many commentaries offered surrounding the subject. One Big Tech leader, Marc Benioff of the cloud computing company Salesforce, believes that regulation should come Facebook’s way – “exactly the same way that [the government] regulated the cigarette industry,” in fact.[14] That’s how psychologically manipulative the platform has become. More eye-opening are the words of Facebook’s founding president, Sean Parker, back in 2017: “God only knows what it’s doing to our children’s brains… It’s a social-validation feedback loop, exactly the kind of thing that a hacker like myself would come up with, because you’re exploiting a vulnerability in human psychology.”[15] Multiple studies have illuminated Facebook’s costs: low self-esteem, poor body image, and even withdrawal symptoms.[16] Users have the freedom of choice, certainly, but are positively rewarded to remain on the network while it’s simply convenient, seeing that Facebook’s network effects and bundling stifle traffic to its competition, according to Gebicka and Heinemann.

Last of these examples of exclusionary conduct lies within users’ administrative choices, or rather, their restricted freedom to modify the service. The Facebook user signs up by accepting the company’s terms without objection or influence. While the company has every right over what it delivers and how to its users, there is basis for abuse seeing that “Facebook has exclusive jurisdiction regarding their profile.”[17] The user should have say where every bit of their material shows up on the website. Facebook can, technically, modify their product where a user’s information may appear in a new environment of which they’re unaware; there’s no commercial contract between Facebook and the user to safeguard against any sort of abuse, they need only to passively accept the laborious-to-review Terms of Service.[18] Furthermore, it’s proven that Facebook pays no respect to the informational privacy of user and non-user alike: the media ‘beast’ has collected call records and SMS data from Android devices for years and even tracks the data of visitors not registered, i.e. have never signed any agreement.[19] Gebicka and Heinemann assert that, because users may have “nowhere else to turn to, as in the social media market,” they essentially stay despite great dissatisfaction.[20]

Though here are four prime examples of Facebook’s exclusionary and exploitative strategies, as per Gebicka and Heinemann, the list could continue on. Evaluating the company as anticompetitive is a correct deduction – preventing customers from choosing competing products is such, whether intentionally monopolistic or by the unintended nature of Facebook’s positioning in the right place at the right time. Referring back to Barry Lynn of Open Markets, Facebook is the leading way most Americans get their news and accounted for 26% of external traffic referral to news sources.[21] With dominance over the social networking and news publishing markets, now is as crucial a time for the FTC to restructure Facebook, but it won’t enter the scene clear of obstacles.

Section III: Challenges and Zuckerberg’s Deceptive Compliance

Facebook is anticompetitive in nature and is the de facto monopoly of social media; that argument can stand in court. What would prove difficult is presenting Facebook as a monopoly worthy of antitrust enforcement, if it weren’t in a scandal-filled season itself. As this paper has explored, there is the legal and market rationale behind “fixing” Facebook. There is a readiness, in Washington and in the popular culture, for the social media giant to meet the FTC. Before considering this in the next section, we must address the real difficulty in confronting the Facebook problem.

‘New’ Monopoly, New Game

As mentioned previously, Facebook doesn’t fit the frame of what antitrust history would know as the traditional monopoly. It’s a part of a “new” monopoly structure thanks to the Internet. Whereas the old would typically be determined on a price-basis, although not exclusively, the new has “to be adapted in order to fit to the environment of ‘free’ internet services.”[22] The government would find difficulty pursuing antitrust action against Facebook if they followed in either of two ways: (1) regarding Facebook under the conventional mindset of the monopoly and (2) missing the two-sided character of Facebook’s business model.[23]

For the first, as said, competition law wouldn’t do well to regard Facebook as not-monopolistic simply because it’s a free service to its users. There are costs; largely, one’s data. Facebook dominates its market unlike any other platform, and thus takes advantage of its enormous collection of personal data, which it then sells to remain free-to-use. Secondly, this advertising wing of the business is one side of the model; the other being the social networking aspect. On one hand, especially in its infancy, Facebook is private user to private user, but is also private user to other (the advertiser).

Those in government, unfortunately, are not always experts of the particular issues they’re to deal with. During Zuckerberg’s Senate testimony on 10 April 2018 surrounding the Cambridge Analytica scandal, Senator Orrin Hatch of Utah asked the CEO how he could sustain a business without charging anything to the user, to which Zuckerberg replied with a smirk, “Sir, we run ads.”[24] The moment has been made a laughing stock in popular culture and highlights a gap in understanding that could yield negative effects. The same ill-equipped and unversed perspective may also be present in the FTC as well. There is always room for human error. Therefore, the FTC would do well to take time and caution, as any agency certainly would, to learn all there is about the structure of Facebook and its future.

Cooperation for the Sake of Power

Restructuring hinges on the compliance of Facebook and Zuckerberg, who acts as CEO and chairman and owns enough class B stock to afford him 60% of the voting power.[25] While the government can ultimately decide winners and losers in the market, Zuckerberg is as much of his own boss with enough power to at least fight for an outcome he sees fitting. It will serve as an important caveat to regard Facebook’s cooperation with the government with a little cynicism. Corporations are profit-driven, and profit isn’t a concern without the customer. Zuckerberg will act accordingly to public relations strategy to keep its valuable ocean of users and, of course, he agrees with regulating his company. In years past, before truth came to light surrounding the 2016 presidential election and Facebook’s role in the Trump campaign, the media giant aggressively lobbied against the Honest Ads Act, a bill modeled after disclosure rules for broadcasters in political advertising.[26] Now, thanks to public attitude of social media and “fake news”, Facebook is all for regulation. Make no mistake, the change of mind is all PR. Whatever the company can concede to the public, it will attempt, minimally. Restructuring the private behemoth would be a threat too large, thus smaller acts of compliance for the sake of keeping power would in no way be harmful concessions in the bigger picture.[27]

Section IV: Facebook is Ready to Meet Change

The interplay between Facebook’s “fake news” problem and Russian meddling in the previous election is a serious break of trust and a possible threat toward democracy. As we have already tapped into the legal and economic reasoning for reorganizing Facebook, there is as much public and political will for the FTC to move in this direction. A recent poll articulates that nearly 60% of Americans distrust the social media outlet, while trusting more so in its rivals, in handling their personal information.[28] The culture is ready for the government to act, but is the government itself ready? In short, it is politically. Raised concerns over Facebook’s power coincide with “a revival of interest in antitrust policies on the left and a growing suspicion of Facebook’s liberal politics on the right,” according to media historian Niall Ferguson.[29] Indeed, at Zuckerberg’s congressional hearing over the data scandal, both sides of the aisle pushed their distrust in Facebook’s ability to protect the user and both expressed antitrust sentiment.[30]

If Facebook had a significant role in the Trump campaign and foreign interference in the 2016 presidential election is true, the platform’s “weaponization” is in line with the striking reality of Facebook’s use in the Rohingya Crisis oceans away as it is at home. Unfortunately, revelations from the Cambridge Analytica whistleblower argue for the worst. The British firm allegedly used the unwarranted data in early 2014 to “build a system that could profile individual US voters, in order to target them with personalized political advertisements.”[31] At that time, President Donald Trump’s chief strategist from his first seven months of term, Steve Bannon, acted as vice president and was a co-founding member. The Trump campaign hired the firm to lead its digital advertising efforts in June 2016, and the whistleblower, former employee Christopher Wylie, asserted that Bannon was, at least in part, aware of their activities related to the election.[32] If ever there was a time for the government to consider action, this is it.

Section V: Ethical, Corporate, and Legal Actions Further

The Open Markets solution offers solid structure as to how the FTC should reshape Facebook. Referring back to Section I of this paper, the potential actions the agency should take categorize into ethical, corporate, and legal sets. Of these three, the most likely to unfold are the ethical and legal. Tightening up the website’s privacy rules and moving toward a more transparent company are already on the way, either from the federal end or Facebook itself. Earlier this year it has begun implementing a global program to prevent meddling in elections by requiring advertisers to name themselves publicly and by allowing users outside a target audience to see ads not directed toward them, which was near impossible beforehand. ProPublica reports the initiative does well but is “nowhere near the openness sought by critics who say online political advertising is a Wild West compared with the tightly regulated worlds of print and broadcast.” Additionally, as we’ve seen, data privacy has become a hot-button issue unlikely to disappear from either party’s scope.

The solution’s legal repercussions are dependent upon the agency’s investigation of the Cambridge Analytica scandal, which is currently underway. As the Washing Post and Fast Company report, each violation of that 2011 consent decree between Facebook and the FTC over user data privacy surmounts to $40,000.[33] In theory, each one of the potentially 87 million users whose data were improperly shared with Cambridge Analytica could be considered a single violation, totaling a $3.5 trillion plus fine.

The Worth in Corporate Restructuring for the User

The FTC shouldn’t merely charge the Internet beast with a fine, though potentially devastating in weight. It would do well to pursue ethical and legal measures against Facebook, but the company’s monopolistic nature in the social networking market and approaching dominance in online news publishing warrant its reorganization. The insights into its exclusionary and exploitative practices seen from Gebicka and Heinemann’s research support corporate restructuring. As outlined by Open Markets, the suggested three actions for the FTC in this sense were to (1) divest Facebook of its advertising network to eliminate “most of the incentive that Facebook now has to amass data and to interfere and discriminate in the provision of information and news,” (2) “reverse the approvals for Facebook’s purchases of WhatsApp and Instagram, and reestablish these as competing social networks,” and (3) “prohibit all future acquisitions by Facebook for at least five years.”[34]

Under the first point, creating a new entity out of Facebook’s advertising house would “demonetize” users to the social networking aspect of the company, as in the old days. Splitting Facebook’s two-sidedness model of user-to-user and user-to-advertiser (recall Section III, paragraph three) would fundamentally reshape the network’s purpose to a more user-centric and less profit-oriented position, and in theory, allowing more of a respect toward the user’s data privacy. The social networking aspect would have to work closely with the advertising house while promoting new standards of openness and respect toward the customer. Profits wouldn’t entirely disappear; on the contrary, the new advertising house will pay for the digital real estate the network has to offer.

Reversing the acquisitions of WhatsApp and Instagram will have a similar effect upon the user on two or more of the platforms. As separate entities again, Facebook as a whole has less of a stronghold over the Internet’s data collection and Internet traffic overall. In the case of bundling as a monopolistic example of abuse, “de-bundling” some of Facebook’s products into competing entities would promote growth among all three and likely others. An old trick of the monopoly, though not necessarily evil, is to acquire competitors to either snuff them out or absorb their power. Facebook, the website and mobile app alone, is multifaceted as is to carry on with the loss of a mobile photo-video and messaging app. Indeed, the platform already provides both within itself. Lastly, to prohibit acquisitions like these two in the short-term future has similar effects. One thing it allows is for Facebook to focus on data protection and recovering from these potential losses by the FTC and other possible governmental action coming its way.

Section VI: Concluding Remarks

Facebook sits at an unprecedented turning point in antitrust law, likely to affect the livelihood of other Internet companies and the unregulated giants in Silicon Valley. The FTC must approach this historic moment with both time and caution, but they must not let that nor their lack of knowledge surrounding Internet business and the “new” monopoly create any missteps. As we’ve explored, the rationale exists in both legal and sociopolitical senses to fundamentally reorganize Facebook’s monopoly. The will is there among the people, the government, and, seemingly, Facebook itself. Millions of people’s data are at risk, the nation’s democratic process has been threatened, and competition is strangled by Facebook’s massive advantages in the social networking market. Furthermore, with Facebook entering the news publisher scene, no longer an untouchable distribution channel but an actual media entity, the time for the FTC to act is doubly significant. Such influence and power over a number of lives, the country, and the market requires serious attention and thus, restructuring is a plausible and worthy cause, though complicated.


[1] Eli Meixler, “Facebook Has ‘Determining’ Role in Rohingya Violence,” Time 13 Mar. 2018.
[2] Ibid.
[3] Reuters News Agency, “UN: Facebook Had a ‘Role’ in Rohingya Genocide,” Al Jazeera, 13 Mar. 2018.
[4] Mark Zuckerberg, “A Lot of You Have Asked What We’re Doing…” Facebook personal profile, 19 Nov. 2016.
[5] “Fines for Facebook Aren’t Enough…,” Open Markets Institute, 22 Mar. 2018.
[6] Barry Lynn and Matt Stoller, “Facebook Must Be Restructured…,” The Guardian, 22 Mar. 2018.
[7] “Fines for Facebook Aren’t Enough…,” Open Markets Institute.
[8] Cecilia Kang and Kevin Roose, “Three Takeaways from Mark Zuckerberg’s Senate Testimony,” The New York Times, 10 Apr. 2018.
[9] “Fines for Facebook Aren’t Enough…,” Open Markets Institute.
[10] Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” World Competition: Law & Economics Review, June 2014, p. 153.
[11] Ibid., p. 166.
[12] Ibid., p. 167.
[13] Ibid., pp. 168-70.
[14] Alex Hern, “Facebook Should Be ‘Regulated like Cigarette Industry’,” The Guardian, 24 Jan. 2018.
[15] Ibid., and Mike Allen, “Sean Parker Unloads on Facebook” Axios, 9 Nov. 2017.
[16] Alice G. Walton, “The True Costs of Facebook Addiction,” Forbes, 9 Apr. 2015, and Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” p. 166.
[17] Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” p. 163.
[18] Ibid., pp. 163-4.
[19] Tom Warren, “Facebook Has Been Collecting Call History…,” The Verge, 25 Mar. 2018.
[20] Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” p. 164.
[21] Barry Lynn and Matt Stoller, “Facebook Must Be Restructured…,” The Guardian.
[22] Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” p. 153.
[23] Justus Haucap and Ulrich Heimeshoff, “Google, Facebook, Amazon, Ebay…,” International Economics & Economic Policy, Feb. 2014, pp. 50-1, and Aleksandra Gebicka and Andreas Heinemann, “Social Media & Competition Law,” p. 155-6.
[24] Cecilia Kang and Kevin Roose, “Three Takeaways from Mark Zuckerberg’s Senate Testimony.”
[25] Shona Ghosh, “Facebook Investors Want …,” Business Insider, 16 Apr. 2018.
[26] Cecilia Kang and Kevin Roose, “Three Takeaways from Mark Zuckerberg’s Senate Testimony.”
[27] Niall Ferguson, “Why Mark Zuckerberg Can’t Be Trusted to Regulate Facebook,” Time, 1 Feb. 2018.
[28] Chris Kahn and David Ingram, “Americans Less Likely to Trust Facebook than Rivals…” Reuters, 25 Mar. 2018.
[29] Niall Ferguson with Time Niall Ferguson, “Why Mark Zuckerberg Can’t Be Trusted to Regulate Facebook.”
[30] Cecilia Kang and Kevin Roose, “Three Takeaways from Mark Zuckerberg’s Senate Testimony.”
[31] Emma Graham-Harrison and Carole Cadwalladr, “Revealed: 50 Million Facebook Profiles…,” The Guardian, 17 Mar. 2018, and Paul Blumenthal and Arthur Delaney, “Mark Zuckerberg Is Literally Asking Congress To Regulate Facebook.” The Huffington Post, 23 Mar. 2018.
[32] Brennan Weiss, “New Details Emerge about Steve Bannon’s Ties to Cambridge Analytica,” Business Insider, 24 Mar. 2018.
[33] Michael Grothaus, “Facebook Could Be Hit with Trillions in FTC Fines over Cambridge Analytica Debacle,” Fast Company, 19 Mar. 2018.
[34] “Fines for Facebook Aren’t Enough…,” Open Markets Institute.

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