Why It Doesn’t Make Sense to Call Websites “Common Carriers”

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from this-is-not-what-public-transit-is-for- department

There has been an unfortunate movement in the United States over the past few years to try to argue that social media should be considered “common carriers”. This comes mostly (somewhat ironically) from Trump’s rogue victim wing, who try to coerce websites into carrying the discourse of trolls and extremists claiming (against all real evidence) that there is an “anti- -curator” in content moderation. on various major websites.

This leads to things like the bizarre Ohio lawsuit that outright declares Google a “common carrier” and appears to assert that the company cannot “discriminate” in its search results, even if the purpose of the search is to rank (i.e. discriminate) between different potential search results to show you which ones it thinks best match your query.

There is even some movement among (mostly Republican) lawmakers to pass laws declaring Facebook/Google/Twitter to be “common carriers”. There is a certain irony here, in that these same Republicans have spent years demonizing the idea of ​​“common carriers” when the net neutrality debate was unfolding, and insisting that the whole concept of “common carrier” was socialism. Amusingly (if it wasn’t so silly), Republican-proposed bills often declaring social media sites as common carriers cut out explicitly broadband providers of definitions, as if to prove that these are not real principles, and 100% to use the law to punish companies that they believe do not share their ideological beliefs.

Unfortunately, beyond high-profile politicians, even some academics are beginning to suggest that social media should be treated like common carriers. Beyond the fact that it would almost certainly bite conservatives down the line, there’s an even better reason why it makes no sense to make social media websites common carriers.

They don’t match any underlying characteristics that made common carrier designations necessary in the first place.

Although there were other precursor laws concerning the obligation to offer a service if you were “public calls”, the concept of “common carriers” is literally linked to its name: the “carrier” part is important. Common carriers are intended to transport things from point A to point B. Going back to the first use of the direct concept of a “carriage” rule, there is the 1701 case in England of Lane v. Cotton, regarding the postal service’s failure to deliver mail. The court ruled that a postal service should be considered a common carrier and that there was a legitimate claim”[a]against a carrier refusing to transport goods at his convenience, his wagon not being full. »

In the United States, the concept of common carrier comes from the railroads, and the Interstate Commerce Act of 1887, then from communications services with the Communications Act of 1934, and the establishment of a major bifurcation between information services (non-common carriers) and telecommunications services who were common carriers.

Over time, you will notice a few important common traits in all historic common carriers:

  1. Deliver something (people, freight, data) from point A to point B
  2. Offer a commoditized service (often involving a natural monopoly provider)

In some respects, point (2) is a function of point (1). Delivery from point A to point B is the key point here. Railways, telegraphs, telephone systems are all in this simple business – transporting people, goods, data (voice) from point A to point B – then no longer having any current relationship with you.

It’s just do not the case of social networks. Social media, from the start, was about host the content you put up. It’s not temporary, it’s permanent. That alone makes a huge difference, especially when it comes to 1st Amendment freedom of association. It’s one thing to say you have to carry someone’s speech from here to there and you have nothing more to do with it, but it’s another to say “you have to host the speech of that person forever”.

Second, social media is by no means a commodified service. Facebook is a very different service from Twitter, YouTube, TikTok, Reddit. They are not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build a redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely different from all other social networks. This is not the case with traditional common carriers. Going from New York to Boston by train is like going from New York to Boston by train.

Finally, even if you turned around and ignored all of this, you are still ignoring this. even with public carriersthey can refuse service to those who break the rules (this is the reason why any social media bans a user – for violating the rules). Historically, common carriers can refuse carriage for someone who doesn’t pay, but also if the goods are deemed “dangerous” or improperly packaged. In other words, even with a common carrier, they can deny service to someone who violates the terms of service.

Thus, social media does not meet any of the basic components of a common carrier. It hosts content permanently, and does not just transport data from one point to another in a transitory way. It’s not a basic service, but often very differentiated in a world with many different competitors offering very differentiated services. It is not a natural monopoly, in which the high cost of building infrastructure would be inefficient for other market entrants. And, finally, even if you somehow ignored all of this, declaring a social media site a common carrier wouldn’t change the fact that it’s allowed to ban or moderate users who do not comply with the terms of use of the site.

So can we just stop talking about how social media websites should be declared common carriers? It never made any sense.

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Filed Under: common carriers, social media, transportation
Companies: facebook, google, twitter, youtube

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