By Brian Fung, CNN Business
Services like Facebook and Twitter could change drastically for millions of Americans in the coming years depending on how the courts decide a hotly debated question: Should social media platforms be regulated like railroads?
This is an issue that has received increased attention of late, as a number of states, including Texas and Florida, have Laws passed for this purpose. Although they were temporarily blocked amid ongoing legal challenges, the laws propose a fundamental overhaul of the legal status of social media that could expose large swaths of the internet to government regulation. The new laws would require major social media platforms to host a much wider range of content than they currently allow, including content that might otherwise violate their terms of service, or face prosecution.
The laws in Texas and Florida rest on the determination that social media providers are a kind of common carrier, a special etiquette involving heightened public obligations and limited First Amendment rights. It is the first time in the history of the Internet that applications or websites have been regulated like the railways or the telegraph of old.
Last week, the Supreme Court stop Texas law to take effect in an early stage decision. But several of the justices suggested that the underlying issues will ultimately be important for the court to consider, and that it’s “not at all clear” how its previous rulings should apply to tech platforms.
If the laws in Texas and Florida are ultimately complied with, it could give governments in other states, and potentially at the federal level, new opportunities to treat digital services more like dumb pipes than active policy makers when it comes to relates to the content they host.
“The question is whether we can fit social media into this model,” said Adam Candeub, a Michigan State University law professor who helped Texas with its case. ” Are you okay with ? Because if it is, then the government has a lot of power to regulate.
What is a Common Carrier?
The concept of mass transit dates back hundreds of years, probably even to medieval times, according to some scholars, and originally related to services that transported or accommodated goods and people in some way or other. another one.
Some of the oldest examples of common carriers include English inns and taverns offering travelers a place to sleep, or ferries providing transport across a river. If a customer believed they were being harmed, perhaps because the ferry operator had damaged their goods or charged them an unfair fare, they could seek redress by taking the supplier to court.
Through centuries of litigation, the core ideas of common transit—focused on product consistency, equal access, and consumer redress—have been formalized and extended to other industries. Today, common carriers are faced with the same obligations, regardless of their activity. They should generally be perceived as offering their services to the general public. They cannot engage in unreasonable discrimination. They must charge fair and reasonable prices. And they must provide reasonable care; public transport providers are expected to ensure the safety of passengers on buses and trains, for example.
Today, everything from taxis to dispatch services tends to be considered common carriers. And if some conservatives are to be believed, services like Facebook, Twitter and YouTube also deserve to be part of this group.
Conservatives claim they have been censored on social media by liberal-leaning computer programmers. This is a theory that has not been backed up by credible independent research. But it’s easy to see why requirements for public transport to serve all comers and refrain from “unreasonable” discrimination might seem like an attractive tool for the situation, said Harold Feld, communications law expert at Public Knowledge. , a consumer advocacy group.
“What they would have is the ability to sue Facebook and say, ‘You’re not really engaging in “reasonable” discrimination, you’re engaging in unreasonable discrimination under the guise of neutrally applying your terms of service,” Feld said.
The policy of new technological regulations
Regulating common carriers is just one of many ideas policymakers have floated to try to rein in tech platforms as criticism of Big Tech has intensified around the world. In the United States, there have been bipartisan calls to change antitrust lawstrengthen privacy protections and restrict Section 230 of the Communications Decency Act, the Internet’s liability shield.
But the common carrier’s goal is separate from antitrust efforts and arguably more controversial because it can involve restricting a company’s constitutional rights.
In a federal appeal decision last month over the Florida law, a three-judge panel ruled the legislation risked violating the First Amendment. Social media companies explicitly cite their terms of service and algorithms to justify ranking, sorting and blocking content, which is a kind of speech act that disqualifies them from being considered common carriers in the first place. , said the Court of Appeals for the Eleventh Circuit.
“Neither law nor logic recognizes the authority of the government to strip an entity of its First Amendment rights simply by labeling it a common carrier,” the justices wrote.
But there is another school of thought that argues that social media platforms should be considered common carriers because they already meet some of the most important criteria. In court filings, Texas and Florida have argued that social media platforms present themselves to the general public as neutral platforms for speech, and as a core feature of public transportation , social media platforms can be considered common carriers.
Some members of the Supreme Court seem sympathetic to the argument; Conservative Justice Clarence Thomas has been a particularly vocal proponent of this perspective.
“Although digital instead of physical, [digital platforms] are basically communication networks, and they ‘carry’ information from one user to another,” he said. argued Last year. “And unlike newspapers, digital platforms present themselves as organizations that are focused on spreading the word of the general public.”
What public transport is not
Experts say it’s not uncommon for transit to get mixed up with other legal concepts, and it’s important to know the difference because the implications could be significant for the future of internet regulation.
Fundamentally, and perhaps confusingly, common carriers are not the same as utilities, although the terms are sometimes confused, including in the debate over how to regulate social media.
Utilities are such essential services that the government may seek to run them directly or by granting exclusive monopolies to companies which then enjoy powers similar to those of the government, such as eminent domain. With a public service, the government can officially set prices and require certain areas or populations to be served, even if they are unprofitable; this is not the case with common carriers. Many utilities are common carriers, but not all common carriers are utilities.
“‘Public transport’ is an economic regulation that aims to ensure that everyone gets the same product,” Feld said. “And ‘public utility’ means the service is so important, it’s not just that you want to have it, you have to have it. … If you’re not going to die without it, it’s probably not a public service.
Social media may be essential to modern democratic societies, but claims that they should be considered public services have enormous regulatory implications. And even the laws of Texas and Florida stop there by resorting to the common carrier framework.
Regulating common carriers is also not a tool to fight monopoly or market power, although that is a common misconception, said Indiana University law professor Barbara Cherry. You don’t have to be a monopoly to meet common carrier obligations, and having monopoly power is not what exposes you to common carrier regulation.
“Monopoly has nothing to do with it,” she said. “It has nothing to do with the number of carriers, it has nothing to do with their market power. This is the type of service you provide.
Although a Supreme Court majority voted to temporarily block the Texas law from taking effect last week, three justices — Thomas, Samuel Alito and Neil Gorsuch — dissented. The result suggests there may be some level of support in the nation’s highest court for a broad overhaul of the legal status of social media companies under state and federal laws. In the dissent, Alito wrote that the underlying issues in the case “will clearly merit the consideration of this Court.”
“I think there’s a good chance it will go all the way to court next season,” said Berin Szoka, president of tech advocacy group TechFreedom, which filed for support from social media companies in this case. “That’s part of why this dissent was short and the other justices didn’t say anything, because they see this coming.”
On a national level, legal experts said, a finding that social media platforms are common carriers would allow a future Federal Communications Commission to try to classify social media as a public transportation service. It could then attempt to impose its own regulations on the industry, much as the Obama-era FCC sought to regulate Internet service providers using the same rubric.
“Under a Republican FCC, who knows?” said Cherry. “You can’t count on what would happen. … We are in a period of very high political instability.
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