Politics Foreign Affairs Culture Fellows Program

Facebook and the Law

The platform facilitates illegal immigration and human smuggling because its mission is above mere nations.

In the early chapters of his letter to the Romans, St. Paul describes how humanity stands condemned before God’s law, guilty of falling short of the justice we were made for. Both the law that is written on our hearts, often called the natural law, and the law of revelation, given unto Moses, show a standard of being fully human that, the apostle reminds his readers, only Jesus Christ has fulfilled. And so God became man so that man might become God, as the Athanasian formula puts it, because man was always supposed to be Godlike but, fallen in sin, is not. The law, then, assumes our imperfection, and points us to our perfection. Lutheran theologians summarize this as the law’s threefold role of curb, mirror, and guide. 

Conservatives, Christians or not, likely recognize this tripartite function even in the state’s positive law. It assumes man is fallen, too. Our laws curb disorder by condemning crime. They act as a mirror of our culture, a portrait of our vices and priorities and aspirations. And in being so, even our secular laws guide us to becoming a certain kind of human being. Of course, the law in the fullest sense extends beyond the legal code, into the realm of mores and norms and traditions, from sexual taboos to rules about when to wear white, in which we live and move and have our social being. To be fully the citizen of any country is to conform oneself to its laws—these unwritten ones, written on the heart by sentiment and habit, perhaps more than the ever expanding legislative pile. 

What does any of this have to do with Facebook? 

In a letter dated June 28, Arizona Attorney General Mark Brnovich wrote to Mark Zuckerberg inquiring about Facebook’s policies concerning posts connected to human trafficking, human smuggling, and illegal entry to the United States. Brnovich noted that the Arizona attorney general’s office had attempted to post an advertisement for anti-human trafficking resources to the social media platform earlier this year, but that Facebook “denied these submissions and prevented our office from posting them.” Meanwhile, the attorney general said, in the midst of dramatically increased numbers of crossings and apprehensions at the border, posts promoting human smuggling services and illegal immigration remained on the platform. Thus, Brnovich wrote, he was seeking further information related to various aspects of Facebook’s enforcement regime for posts that promote illegal activity.

In the company’s response, dated July 30, Facebook Vice President for State Public Policy William Castleberry detailed the largely algorithmic processes the company has in place for its content moderation decisions, as well as its human support, noting “our policies prohibit the use of our services for illegal purposes,” including “content that offers to provide or facilitate human smuggling, which includes advertising a human smuggling service.” Castleberry did admit, however, that 

We do allow people to share information about how to enter a country illegally or request information about how to be smuggled. After consultation with human rights experts, we developed this policy to ensure we were prohibiting content relating to the business of human smuggling but not interfering with people’s ability to exercise their right to seek asylum, which is recognized in international law.

Well then. 

After receiving Facebook’s reply, Arizona Attorney General Brnovich sent a letter to Merrick Garland, the U.S. attorney general, and the Justice Department expressing his concern that Facebook, as confessed by itself, is aiding the violation of American law. In the October 14 dated letter Brnovich wrote, “our office requests that your Department investigate Facebook’s facilitation of human smuggling at Arizona’s southern border and stop its active encouragement and facilitation of illegal entry.” He went on to note, “Facebook’s policy of allowing posts promoting human smuggling and illegal entry into the United States to regularly reach its billions of users seriously undermines the rule of law.”

Whose law? Facebook would say its policy, and its algorithm, reflects a higher law, the international law of universal human rights. We have here an illustration of the limits of law and its capacity to rule. We also have here an illustration of the limits of algorithms, which are a kind of law, too, a law based on other laws, a policy of policies. But at some point, a human being makes a choice, a decision, is responsible, whether or not we hold them as such. That is why Brnovich wrote to Zuckerberg, and why he wrote to Garland: He believes someone is in charge and should be treated as such; he knows that federal law, like Arizona law, only has force if it is enforced. He understands it is supposed to be a curb, among other things, and wants to see it do its job, keeping order, preventing disorder. 

Zuckerberg and Garland, however, whatever they would personally say, participate in an ideology that would reduce the law to only guide. Indeed, Castleberry’s response on behalf of Facebook, with its specific appeal to international law, gives the whole game away. International law, more than any other kind, cannot do more than pair aspiration and naked force. States have all the accumulated marks of history to fill in the gaps between particular laws, an organic inheritance that creates the framework for something like authority, the ordered and harmonious direction of wills with shared object and measure. The international community is too large for that, too diverse in experience and capacity to ever truly share a frame of reference, a law of the heart. But the liberal establishment is committed to rejecting the law as curb or mirror—for what can that mirror show except the benighted past—in its quest to guide humanity to a bright future where borders and nations mean nothing, and significance can be found in life as one of Facebook’s 3 billion units of production and consumption. 

Why? They, and everyone else who would subject existing political states to the dreams of a global game of Sims, do not really believe that humanity is dangerous or endangered; the only danger now is climate change, the only imperfection is to deny our perfectibility, and that sin cannot be tolerated. And from this comes both the pharisaism and antinomianism of our supposed betters, for if humanity is unfallen, if it need only experience its universal rights to flourish into the fullness of itself, then how evil it is for anyone to hinder that effort with divisions between nations, with laws that constrain, or set standards, or show the human being to be a creature quick to violence and civilization a fragile thing. Law as curb, law as mirror, becomes now, in our therapeutic language, stigma—God gave Moses the Ten Stigmas and we have been suffering ever since. 

Those who treasure the rule of law, who are grateful to live in the United States and not somewhere else, must remember that the law is upheld by individuals and broken by individuals, that it is persons who are responsible and that justice demands persons be held to account. Arizona’s Brnovich knows this, and public servants like him. But those who wish to uphold the law must also remember that with it comes the opportunity for mercy and for grace. Zuckerberg and Castleberry, with their appeal to asylum for illegal immigrants, think they are partisans of the way of mercy, but they forget there is no grace without sin. Shall we sin that grace may abound? May it never be.