Many Thanks for all the Comments on My Social Media / Common Carrier Posts

I'm doing the final substantive revisions on my article now, and I'm going through all the comments to see what changes I should make and what new arguments I should respond to. I've made considerable edits as a result of those comments, and I expect to make still more—I very much appreciate the time and effort people have put into commenting on this!

And I'm sorry I couldn't respond to the comments in the threads: I was occupied with other projects those weeks, and there were so many comments (given the number of posts I put up about the article) that I knew I had to mostly save my reading of the comments until I could turn to all the posts at once, as I'm now doing.

Comments

[DaivdBehar]

They are common carriers, in reality. Their legal status as that will lead to a descent into porn, terrorism, and criminal enterprises. But that is a problem of the phone company, as well as that of the electric and water companies. Are advocates ready for this substantive consequence? I do not think there is any choice but to acknowledge reality in legal doctrine.

[whey_standard]

What do they carry over rights of way obtained by government power, and how do they carry it? A telephone company carries information through their lines laid on easements obtained by government power and granted to that telephone company by the government, or over airwaves on spectrum allocated to them for their exclusive use by the government. Does Facebook do this? Or do they, like you, have to hire an access ISP to transport their data for them?

[DaivdBehar]

You are referring to old technology. They have 90% market share, and the monopoly is natural. They are immunized, and that is no longer necessary to grow the business, as in 1996. They are a million times more intrusive than any wire or pipe traveling on property. Facebook is the best medium for advertising, news, and many other social functions. We should face that reality, and adapt and update the law from 1996.

[whey_standard]

I am referring to an essential component of what makes something a "common carrier". Should I presume you're conceding the point that they're not a common carrier, since you're making arguments that aren't really relevant to common carrier status? I think that should be settled before we address your new assertions.

[M L]

UPS is a common carrier. Are you saying that this has to do with their use of government rights of way i.e. highways, streets, roads, boulevards etc?

[DaivdBehar]

UPS has a quarter of the delivery market, and is not a natural monopoly. These platforms have 90% and are the only place to be.

[David Nieporent]

UPS has a quarter of the delivery market, and is not a natural monopoly.

That ought to tell you that neither market share nor natural monopoly are the test for common carrier status.

Lots of ignorant right wingers like yourself are confusing antitrust arguments with common carrier arguments.

These platforms have 90% and are the only place to be.

No platform has 90% market share, or is the only place to be.

[M L]

Ilya Somin in his post on the subject wrote, "The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power."

https://reason.com/volokh/2021/07/08/the-case-against-imposing-common-carrier-restrictions-on-social-media-sites/

[whey_standard]

And that is illogical, as federal interstate common carrier regulations apply whether one is UPS or just an operator of a single interstate truck for hire.

[M L]

Illogical or not, I assume it's an accurate statement.

Since he said "standard" rationale, I assume there are other rationales.

"common carrier regulations apply whether one is UPS or just an operator of a single interstate truck for hire."

That's not true. There are also "contract carriers" from an owner operator hauling garbage or grain, to large firms. I don't know much about it, but it looks like you're only a common carrier if you want to be one, by holding yourself out as a common carrier offering services to the general public at large.

[whey_standard]

How does the existence of contract carriers demonstrate that federal interstate common carrier regulations apply regardless of size? Contract carrier status, as you pointed out, also isn't dependent on size. Your comment makes absolutely no sense.

[M L]

I took your comment as saying that common carrier regulations applied to all shipping/trucking companies. You're right, it doesn't seem to be dependent on size. It seems like basically an opt-in for trucking companies, you're a common carrier if you want to be.

Nieporent said "Lots of ignorant right wingers like yourself are confusing antitrust arguments with common carrier arguments." My point was it seems that antitrust arguments do indeed overlap with common carrier arguments. That doesn't mean you won't have small entities that are common carriers, since the law is one of general applicability. There are other rationales too, I think. Moreover, the antitrust rationale would be based on the general characteristics of the shipping industry as an industry, rather than the circumstances of specific businesses. These principles developed over centuries, they weren't based on a study of UPS market share or anything like that.

[DaivdBehar]

David, antitrust is lawyer scumbag welfare make work rent seeking fraud. It is a waste of time and of money on decades of lawyer games. It is not even constitutional. You are such a hopeless denier trying to explain it to you is a waste of time. You do not argue in good faith. You argue in rent seeking. I know you are not that stupid. I know you have bad faith.

[whey_standard]

I cannot think of a common carrier that does not operate on either rights-of-way owned by the government, or rights-of-way/property obtained by the government and granted to them.

[M L]

You've gone from saying that use of government rights of way is an essential component of common carrier status, to saying that it just so happens that common carriers use government rights of way, at least as far as you know, and supposing it's related.

Regardless, the thing actually determines whether you are a common carrier, is that a legislature passed a law saying you are a common carrier. That's all. It's not determined by academic theorizing and divining analogies. That goes to policy arguments about what ought to be, rather than what is, as well as constitutional limitations.

Anyway, Facebook does indeed transmit data over public rights of way -- very much so. A third party usually owns the "pipes" that are used, and there may be several parties involved, but it's not immediately clear why that is critical. Common carrier shipping companies may lease their trucks, too, and even hire independent contractor owner-operators. Google is an ISP that owns fiber lines. Would Google Plus before it faded away, or a future Google social media site, be different then? Only on Google Fiber lines or . . ? Or Comcast etc?

I saw it stated that the general purpose of common carrier regulation is to ensure that the business being paid to transport [goods/people/data] must do so in a way that is agnostic to the thing being transported. That seems generally accurate. And so the choice to treat a business as a common carrier simply reflects a judgment that it will be beneficial to have businesses providing such transportation or communications services generally without regard to contents.

[Stephen Lathrop]

And so the choice to treat a business as a common carrier simply reflects a judgment that it will be beneficial to have businesses providing such transportation or communications services generally without regard to contents.

And where would anyone get a notion that 1A press freedom encompasses a government power to impose content neutrality on publishers?

[Bwaaah]

And where would anyone get a notion that 1A press freedom encompasses a government power to impose content neutrality on publishers?

1) First Amendment does not empower the government's regulatory authority here; the authority comes from the government's powers to regulate commerce
2) The government's actions to establish common carriers are not empowered by First Amendment, but such actions are subject to 1A restrictions; content neutral regulation, as proposed, should satisfy those restrictions
3) The new regulatory emphasis here is not focused on content "publishers," but on content "hosters"; the professor goes to some length to distinguish the two clearly and to suggest a regulatory regime narrowly applied to content hosting functions only
3) Protection of free expression has been an embraced cultural objective since before the founding of the U.S.; the First Amendment, in its limitation of government actions, is just one limited way in which to support that objective but by no means effective by itself; private carriers, in their "hosting" functions, have begun to significantly augment, curtail and/or discourage free expression that has historically been well within the range of expression that is out of bounds to government regulation; the extension of common carrier theories to hosting companies may effectively restore the openness that has been significantly and evidently diminished over the past couple of years (my "right wing" friends are deservedly angry as their communications, based on viewpoint, have been most targeted by carriers)

[M L]

"And where would anyone get a notion that 1A press freedom encompasses a government power to impose content neutrality on publishers?"

I don't have that notion, and I wasn't trying to discuss constitutional issues here. But I believe you're assuming your conclusion by using the word "publishers." Do you think that Gmail is a publisher?

[whey_standard]

"You’ve gone from saying that use of government rights of way is an essential component of common carrier status, to saying that it just so happens that common carriers use government rights of way, at least as far as you know, and supposing it’s related."

Not simply government rights of way, but property or property rights acquired at some point using government power, but yes, it is essential, it's the through line that connects them all, transporting goods or information over such property for others. Yes, what actually causes them to be treated as common carriers is a law is passed that defines them as such. So if that's how you want to define it, anyone and anything can be treated as a common carrier, because the text of a law so saying can be passed. But to the extent we're trying to decide whether this fits in with what we have historically considered common carriers, it doesn't, it's missing the essence I've mentioned.

"Anyway, Facebook does indeed transmit data over public rights of way — very much so. A third party usually owns the “pipes” that are used, and there may be several parties involved, but it’s not immediately clear why that is critical. Common carrier shipping companies may lease their trucks, too, and even hire independent contractor owner-operators."

It doesn't, not anymore than it's customers do. You don't hire Facebook to transmit your data, you have to hire someone else to transmit it to Facebook, and to receive its responses back.

"Google is an ISP that owns fiber lines. Would Google Plus before it faded away, or a future Google social media site, be different then? Only on Google Fiber lines or . . ? Or Comcast etc?"

Yes, under the Open Internet rules, Google's ISP component absolutely was a Common Carrier, because they actually transport data over, in that case, government allocated rights of way. That is a great example, thank you for proving my point.

"I saw it stated that the general purpose of common carrier regulation is to ensure that the business being paid to transport [goods/people/data] must do so in a way that is agnostic to the thing being transported. That seems generally accurate."

It's not though, common carrier regulations explicitly allow discrimination based on what is being transported, for example, hazardous materials.

[M L]

"So if that’s how you want to define it, anyone and anything can be treated as a common carrier, because the text of a law so saying can be passed."

That's correct. Within constitutional limitations. The point is to clarify that we are discussing what ought to be, rather than what is.

"It doesn’t, not anymore than it’s customers do. You don’t hire Facebook to transmit your data, you have to hire someone else to transmit it to Facebook, and to receive its responses back."

It does. Facebook transmits your data from your app to their servers and to others apps, and vice versa. The fact that other parties own and are paid for use of various transmitting equipment in the process doesn't seem to distinguish it from a common carrier trucking company that hires owner-operators. Also, social media is rather significant percentage of all internet traffic.

Users do have a contract with Facebook. They enter into it because they want to have Facebook to transmit data among friends. You don't pay in cash but do give up valuable information and advertising value.

"Yes, under the Open Internet rules, Google’s ISP component absolutely was.."

You missed the question. Google Plus was a social media platform similar to Facebook. Google could buy or start another social media platform. The question is: would the Google social media platform be different in your analysis, given that they more fully own and operate the transmission mechanisms? Or suppose Facebook buys some of the internet backbone channels, or rolls out an ISP service. Same question.

"hazardous materials" I should say generally agnostic with certain limited exceptions. The same goes for speech that is illegal or otherwise unprotected by the first amendment.

Bottom line, I'm not convinced that social media platforms ought to be treated as common carriers. And there may be something to your suggestion that use of public rights of way should be meaningful to that analysis. But it doesn't strike me as the great touchstone of whether or not something should be a common carrier, nor even a sufficient or necessary condition. And your attempt to say that social media does not use public rights of way, when they are a significant percent of internet traffic, seems off the mark.

[M L]

Also consider that early American roads and highways were often privately owned and built, so you didn't have a government aspect there. Pipelines today can be common carriers as well, even though many are privately owned and built, and their rights of way privately acquired not through eminent domain. So it seems this all has to do more with the nature of the industry than some kind of government benefit.

[apedad]

". . . I'm going through all the comments to see what changes I should make . . . ."

Do we all get to stand on stage during the award for the Noble Prize in Writing?

[apedad]

AAAAAAH Nobel....

[Rev. Arthur L. Kirkland]

Conservatives have no use for Nobel Prizes. Elitist, establishment, liberal, reality-based, etic. Conservatives seem to prefer Noble Prizes, which have been endorsed by former Pres. Trump.

(I don't think right-wingers much like the Noble Prizes that have been awarded (requently) for achievement in identifying error in "This Week In Supreme Court History, though.)

[DaivdBehar]

Artie, nitpicking typos is a form of internet rudeness. It says more about your hostility and desperation than about anything else.

[buckleup]

I get the feeling Artie types these out on a borrowed phone at the local soup kitchen. It explains a lot.

[Rev. Arthur L. Kirkland]

Artie has been censored out of existence by the Volokh Conspiracy's viewpoint-driven Board of Censors.

I am Arthur.

[not me]

I don't believe it. You're still upset that Eugene blocked your real account and are continuing to post under your liberal sock-puppet "Arthur L."

[Rev. Arthur L. Kirkland]

Upset? It is an invaluable element of evidence with respect to the issues and debates involving principles, libertarianism, hypocrisy, viewpoint-driven censorship, and freedom of expression.

[DaivdBehar]

There is no blocking on the Reason web site. I was blocked twice by Eugene. One time, I complained to [e-mail], and Jeff restored my Comments.

[DaivdBehar]

You get an email from Eugene, about your vulgarity, especially if has a sexual nature. This is some kind of a Russian thing.

[DaivdBehar]

While making a stinky, hopefully in the toilet. The aroma wafts across the page.

[Jimmy the Dane]

It all comes down to whether or not as a society we are going to tolerate the two sets of rules, one for each political side.

Does the left get a "pass" when it comes to political violence, censorship, rigging elections, stacking the media, and just plain lying to the public? If the answer is anything other than an unqualified "no" it doesn't matter what you do with social media or how this or that is regulated. We will just continue our slow march the final act.

[SuiteVoice]

I'd say that the case for common-carrier status is more stronger for Internet infrastructure (domain-name registrars, CloudFlare, Amazon Web Services, etc.) than for consumer-facing websites.

[allbertluu]

I want to take a moment to thank everyone who has taken the time to read my blog or send me comments on my social media stumble guys. I love hearing from my readers and connecting with other writers cinenerdle. It makes me feel like I'm not alone in this crazy writing journey, and it keeps me going.