
Facebook Negotiated Its Rules - ikeboy
https://www.bloomberg.com/opinion/articles/2019-07-23/facebook-negotiated-its-rules
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telotortium
This is what I think is the most insightful part of the article:

> But I actually think there’s a deeper and stranger explanation here.
> Facebook did some things that a lot of people are upset about, some of which
> (certain sorts of data sharing) probably violated the laws or its earlier
> consent decrees, and others of which (certain sorts of data collection)
> didn’t. We want to stop it from doing all those things again, and the most
> straightforward way to do that is to pass a law saying which things you
> can’t do. But Americans are biased toward thinking of bad things as being
> already illegal, always illegal, illegal by definition and by nature and in
> themselves. If the thing that Facebook did was so bad, then it must have
> been illegal, so there is no need for a new law against it. At most we need
> a settlement with Facebook clarifying exactly which things it did were
> illegal and specifying that it won’t do them again. People are angry at
> Facebook, and that anger takes essentially punitive rather than legislative
> forms; we want to regulate Facebook’s future conduct as punishment for its
> past conduct, not as part of a general law. It is hard to imagine that a
> company could have done a bad thing without also breaking the law—which
> makes it hard to write new laws to prevent future bad things.

Along with this footnote:

> This explanation draws on an argument that James Whitman makes in his great
> book “Harsh Justice,” about how American traditions of libertarianism and
> distrust of state power actually make our criminal justice system
> _harsher_.Whitman writes (page 201): “The strength of the bureaucratized
> European state also helps explain another crucial aspect of mildness in
> French and German punishment: the capacity of French and German law to
> define some forbidden acts as something less awful than ‘crimes’—as mere
> contraventions or Ordnungswidrigkeiten. When European jurists define these
> species of forbidden conduct, they are able to make use of terms and
> concepts that would trouble Americans. The justification for punishing
> Ordnungswidrigkeiten, according to standard texts, lies in the pure
> sovereign power of the state. Because the state is sovereign, the state may
> declare certain types of behavior impermissible. Americans will
> instinctively rebel against this characteristically continent attitude
> toward state power; very few American legal syllogisms begin with the major
> premise, ‘the state has sovereign power to act.’ But it is important to
> recognize what Europeans gain by pursuing this form of analysis. Because
> they are able to defer to state power, they are able to treat some offenses
> as merely forbidden, rather than as evil—as _mala prohibita_ rather than
> _mala in se_. The contrast with the United States is strong: our liberal,
> antistatist tradition leads us to conclude that nothing may be forbidden by
> the state unless it is evil; otherwise the state would have no right to
> forbid us to do it. …In consequence we have a harder time than Europeans do
> thinking of some acts as not permitted, but nevertheless not terribly
> serious.” The converse might also be true: We have a hard time of thinking
> of some acts as terribly serious but _not already forbidden_.

