Why It Makes No Sense To Call Websites 'Common Carriers'
from the that's-not-what-common-carriage-is-for dept
There's been an unfortunate movement in the US over the last few years to try to argue that social media should be considered "common carriers." Mostly this is coming (somewhat ironically) from the Trumpian wing of grifting victims, who are trying to force websites to carry the speech of trolls and extremists claiming, (against all actual evidence) that there's an "anti-conservative bias" in content moderation on various major websites.
This leads to things like Ohio's bizarre lawsuit that just outright declares Google a "common carrier" and seems to argue that the company cannot "discriminate" in its search results, even though the entire point of search is to rank (i.e., discriminate) between different potential search results to show you which ones it thinks best answer your query.
There is even some movement among (mostly Republican) lawmakers to pass laws that declare Facebook/Google/Twitter to be "common carriers." There's some irony here, in that these very same Republicans spent years demonizing the idea of "common carriers" when the net neutrality debate was happening, and insisting that the entire concept of "common carrier" was socialism. Amusingly (if it weren't so dumb), Republican-proposed bills declaring social media sites common carriers often explicitly carve out broadband providers from the definitions, as if to prove that this is not about any actual principles, and 100% about using the law to punish companies they think don't share their ideological beliefs.
Unfortunately, beyond grandstanding politicians, even some academics are starting to suggest that social media should be treated like common carriers. Beyond the fact that this would almost certainly come back to bite conservatives down the line, there's an even better reason why it makes no sense at all to make social media websites common carriers.
They don't fit any of the underlying characteristics that made common carrier designations necessary in the first place.
While there were other precursor laws having to do with the requirement to offer service if you were "public callings" the concept of "common carriers" is literally tied up in its name: the "carrier" part is important. Common carriers have been about transporting things from point A to point B. Going back to the first use of the direct concept of a must "carry" rule, there's the 1701 case in England of Lane v. Cotton, regarding the failure to deliver mail by the postal service. The court ruled that a postal service should be considered a common carrier, and that there was a legitimate claim "[a]gainst a carrier refusing to carry goods when he has convenience, his wagon not being full."
In the US, the concept of the common carrier comes from the railroads, and the Interstate Commerce Act of 1887, and then to communications services with the Communications Act of 1934, and the establishment of an important bifurcation between information services (not common carriers) and telecommunications services which were common carriers.
As you look over time, you'll notice a few important common traits in all historical common carriers:
- Delivering something (people, cargo, data) from point A to point B
- Offering a commoditized service (often involving a natural monopoly provider)
That's just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It's not transient, it's perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment's freedom of association. It's one thing to say you have to transmit someone's speech from here to there and then have no more to do with it, but it's something else entirely to say "you must host this person's speech forever."
Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They're not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That's not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train.
Finally, even if you did twist yourself around, and ignore all of that, you're still ignoring that even with common carriers, they are able to refuse service to those who violate the rules (which is the reason that any social media bans a user -- for rule violations). Historically, common carriers can reject carriage for someone who does not pay, but also if the goods are deemed "dangerous" or not properly packed. In other words, even with a common carrier, they are able to deny service to someone who does not follow the terms of service.
So, social media does not meet any of the core components of a common carrier. It is hosting content perpetually, not merely transporting data from one point to another in a transient fashion. It is not a commodity service, but often highly differentiated in a world with many different competitors offering very differentiated services. It is not a natural monopoly, in which the high cost of infrastructure buildout would be inefficient for other entrants in the market. And, finally, even if, somehow, you ignored all of that, declaring a social media site a common carrier wouldn't change that they are allowed to ban or otherwise moderate users who fail to abide by the terms of service for the site.
So can we just stop talking about how social media websites should be declared common carriers? It's never made any sense at all.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: common carriers, social media, transportation
Companies: facebook, google, twitter, youtube
Reader Comments
Subscribe: RSS
View by: Time | Thread
At this point, shame, hypocrisy and irony have all lost their meaning with the GQP.
They will say and do whatever it is that they feel will get them ahead politically, even if they said and did something completely opposite earlier that same day.
They just don't seem to care about morals and ethics any longer and exist only to rile up their base of rubes to squeeze out of them as much money as possible.
The worst part about it, almost half the country doesn't give a shit, as long as it appears they are "owning the libs" they will gladly keep coughing up their hard earned cash.
[ link to this | view in chronology ]
Never expect logic, or loyalty [or honor--I could go on, and on], from a politician, and you'll never be disappointed, in politicians anyway.
[ link to this | view in chronology ]
Why stop there?
At this point why not just outlaw electronic communication.
[ link to this | view in chronology ]
Social media platforms wouldn't be common carriers even if by some miracle one of the big telcos managed not to completely fall flat on their faces with their repeated comical attempts to buy out a big social media site. The platform itself isn't the network infrastructure. Access to it is carried on the infrastructure. Clear division. Even if for the sake of argument you happen to control both, then you're regulated as a common carrier specifically for your behaviour regarding one specific side of the business, not the other.
[ link to this | view in chronology ]
Loitering Signal Association
This is the advancement of technology. Originally, an electric current traveled down a copper wire at nearly the speed of light. Then, a digital voice signal gets held resident on a semiconductor for a fraction of a second, prior to traveling on down the line. Now, we have data storage, where some unicode characters are stored on a hard drive until such time as the recipients want to retrieve it, perhaps minutes or hours later. The signal has always been on the network for some measurable length of time. The transmission time does not transform the signal into an association to which the network operator can object, because the message never creates an association at all.
[ link to this | view in chronology ]
Re: Loitering Signal Association
Except for the part where, xomtrary to Koby;s deliberate lies, the content is not passed off the platform to the user, but remains inextricably associated with the platform, unlike with actual transmission networks.
Facebook posts are Facebook posts. Twitter posts are twitter posts.
Notice that your phone calls aren't branded with "This caller brought to you by Bell-Atlantic!" and your web packets don't include "This server connected by Concast!"
[ link to this | view in chronology ]
Re: Loitering Signal Association
Bravely bold Sir Koby
Rode forth from the internet.
He was not afraid to die,
Oh brave Sir Koby.
He was not at all afraid
To be killed in nasty ways.
Brave, brave, brave, brave Sir Koby.
He was not in the least bit scared
To be mashed into a pulp.
Or to have his eyes gouged out,
And his elbows broken.
To have his kneecaps split
And his body burned away,
And his limbs all hacked and mangled
Brave Sir Koby.
[ link to this | view in chronology ]
Re: Loitering Signal Association
How many hours of stored phone calls do you think the telcos keep on their systems so that anybody can re-play their voice conversations. share them with their friends, or just allow anybody online to listen in?
Please show me where I can listen in on your phone calls Koby? I mean, if you are still trying to equate telephone calls with social media.
[ link to this | view in chronology ]
commercial Radio & TV
["So, social media does not meet any of the core components of a common carrier."]
.
But neither does commercial radio & TV -- yet the Federal government heavily regulates them, including content censorship.
Federal Radio Acts of 1912 &1924 and Communications Act of 1934 say commercial radio broadcasters are common carriers and can be regulated however the government chooses. Well established law.
The FCC was created by Congress in the Communications Act for the purpose of broadly “regulating interstate and foreign commerce in communication by wire and radio".
Internet communications are quite obviously wire (aka cable) & radio (aka wireless) communications.
Therefore, the FCC already has long had open legal authority to regulate the Internet as it chooses.
Quibbling now over the arcane term "Common Carrier" is futile and about a century too late.
[ link to this | view in chronology ]
I have One Simple Question for you based on your post.
Yes or no: Do you believe the government should have the legal right to compel any privately owned interactive web service into hosting legally protected speech that the owners/operators of said service don’t want to host?
[ link to this | view in chronology ]
Re: commercial Radio & TV
Those services monopolized public radio spectrum, hence some regulation. At what point were they declared "common carriers"? (Content providers are not carriers, didn't carry just anyone's communications, and is specifically addressed in the 1934 Act. ) Common carriers were more-or-less "natural" monopoly wire services, like AT&T, which... carried common communications. p.s. the Act of 1927, created the FRC.
[ link to this | view in chronology ]
Your argument conflates several things while totally disregarding why common carrier regulation is applied to some things, like resource scarcity (radio frequencies) and/or natural monopoly of physical infrastructure.
Social media doesn't tick any of those boxes in any way which is why I'm questioning your reason for conflating it with "internet communications" which can mean anything you want.
To define social media as common carrier you have to prove that it's a limited resource and/or a natural monopoly where people have no choice in what service they have to use. Good luck with that...
So why are you here putting up flawed arguments built on broken logic and conflations?
[ link to this | view in chronology ]
Re: commercial Radio & TV
Commercial radio and TV are not common carriers. How many shows have you been able to get NBC to air for you? NBC? CBS? FOX? Or songs you written played on your favorite local FM station?
Being a regulated industry, using the public airwaves, does not a common carrier make.
[ link to this | view in chronology ]
common carriers offer basis services ,phone, telegraph, transport, theres
1000 s of apps ,theres dating apps for gay women,lgbt trans or gay men, the common carrier concept is a ploy to force social media to accept any user or any content even if it promotes hate speech or discrimination against minority groups.this includes spammers or trolls .theres plenty of conservative users on facebook, instagram and yourube
Apps and social media need to be able to moderate content and reject bad content ,block trolls to provide a safe or non threatening space for users
a law that treats tik tok youtube, dating apps, facebook as all the same
would be a disaster
[ link to this | view in chronology ]
"It is not a natural monopoly, in which the high cost of infrastructure buildout would be inefficient for other entrants in the market."
There is an "infrastructure" in terms of users. Ignoring this is willfull blindness.
[ link to this | view in chronology ]
Re:
Users are not Infrastructure, and a new service can replace and old one, Just ask MySpace. Note also, while you have a right to publish your words at your own expense, you have no right to force somebody else to publish them at their expense, or force an audience to listen to your words.
[ link to this | view in chronology ]
Declaring that social media platforms are common carries while explicitly exempting the ISPs providing the internet service that gets you to those sites really gives the game away and makes clear that these laws have nothing to do with protecting the general public's interests and everything to do with sticking it to the platforms and preventing them from showing assholes the door.
To run with a physical hypothetical it would be like declaring that individual privately owned stores aren't allowed to have or enforce rules for customer behavior while at the same time the privately owned road that connects to all of them is allowed to have all the rules they want. Losing access to one of those is going to have a much bigger impact than the other and yet how they are treated is entirely backwards if the goal really is to preserve access.
[ link to this | view in chronology ]
Or you might say a common carrier is a service that most business, s need to use like telephone services, railway, postal delivery services , that requires millions of dollars to build up infrastrure to serve the public and business people in all states and most city's and small towns . The carrier is not responsible for goods or content that is sent or transported on the network whether its physical or digital
[ link to this | view in chronology ]
CommonCarrier Game
ask 10 people here to define the term Common Carrier -- and you'll get 15 different answers.
Regulators, lawyers, and Congress-members have the same problem.
[ link to this | view in chronology ]