Case Western Reserve Journal of International Law 52 (2020) Crime as Cognitive Constraint Facebook’s actions are entirely separate from the actions of inciters and speakers, including that of state users. Facebook acted as a private entity through and through. Facebook did not act under the color of law and did not moderate content at the behest of any state. Whereas traditional cases of incitement in international criminal law merged control of content producer and owner of technology in one person, I demonstrated in Part 3.b. how the social media era has metastasized control, which complicates the applicability of criminal law to conceptualize the role that platforms play. 282 Thus, the role of social media platforms in the spread of incitement against the Rohingya is different from, say, a local newspaper or radio station publishing or airing statements inciting violence against the group. The latter is sufficiently regulated by “old-school speech regulation.” 283 In contrast, social media platform users are not necessarily private citizens, and those affected by user content are not limited to platform users. 284 The issue thus carries interesting implications on the treatment, duties, and remedies to be expected from social media platforms as private entities embroiled in public harms (e.g. crime). 2. Duty To illustrate tort’s usefulness in conceptualizing corporate harm, I tentatively apply one of its classic permutations – negligence – to the case study before us. I will analyze Facebook’s role in Myanmar’s incitement landscape through this lens. This is not meant to foreclose the careful consideration of other torts – nominate or otherwise – or various forms of liability (i.e., strict liability, fault-based liability). The application here is only meant to display the conceptual possibilities offered by tort law in interpreting corporate involvement in mass atrocity crimes. In laying out the duty of corporations described above, I borrow the language of the UNGPs: The responsibility to respect human rights requires that business enterprises: (a)Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; [multinational enterprises] insofar as that conduct was undertaken in conjunction with (e.g., conspiring, aiding, or abetting) states”). 282. See discussion infra Part 3.B. 283. See Balkin, supra note 275, at 2306. 284. See Jenny Domino, How Myanmar’s Incitement Landscape Can Inform Platform Regulation in Situations of Mass Atrocity, OPINIO JURIS (Jan. 2, 2020), http://opiniojuris.org/2020/01/02/how-myanmars-incitementlandscape-can-inform-platform-regulation-in-situations-of-mass-atrocity/ [https://perma.cc/6U78-5C55]. 191