No, Big Tech Firms Are Not Common Carriers

W riting in the Wall Street Journal, Philip Hamburger and Clare Morell argue that “Big Tech” giants such as Twitter and Facebook ought henceforth to be regulated as “common carriers” and de facto “public accommodations,” and, in consequence, prohibited from “discriminating” against their users. To those who are frustrated with the transparently capricious behavior of the social-media giants and others, the pair’s argument may seem like a plausible and attractive option. In truth, it is no such thing. Worse: It’s dangerous.

Like others who want the federal government to superintend websites such as Twitter and Facebook, Hamburger and Morell are aware that they are running directly at the First Amendment, and that their only hope of avoiding it is to plead for an exemption. To this end, the duo attempt to cast the firms that have attracted their ire as something other than quotidian businesses. America’s “Big Tech” companies, they submit, have become “conduits for information” that “serve the function of a common carrier,” and they should therefore be subjected to “local, state and federal antidiscrimination laws with significant speech consequences.” “The states and the federal government,” they conclude, “have the power to regulate common carriers, and this certainly includes the authority to ban discrimination.”

In support of this proposition, Hamburger and Morell advance three discrete claims. First, they submit that the mere existence of Section 230 of the Communications Decency Act implies that the “Big Tech” firms are common carriers. Second, they suggest that those firms have been “privileged” by the government, and that such privileges have always come with certain responsibilities. Third, they contend that the “market dominance” of certain companies has left the “public with little alternative.” Not one of these suppositions is correct.

“That Big Tech is subject to common-carrier regulation is especially clear,” Hamburger and Morell write, “because Section 230 already recognizes the tech companies as akin to common carriers.” In particular, they point to “Section 230(c)(1),” which “protects Big Tech from being treated as ‘the publisher or speaker of any information provided by another information content provider.’” This, indeed, is what Section 230 does for Big Tech. But it is also what Section 230 does for Medium Tech, Small Tech, Tiny Tech, and Solo Blogger Tech, as well as for the hosting companies that facilitate them. Because it has a comments section, National Review’s website is protected by Section 230(c)(1) — as is the New York Times’s comments section, the Greenville News’s comments section, and the comments section on your crazy aunt’s self-hosted dog-fancying blog. If Section 230(c)(1) renders all of these institutions as common carriers, it must render National Review, the New York Times, the Greenville News, and your crazy aunt’s self-hosted dog-fancying blog as common carriers, too. Surely, Hamburger and Morell do not believe that it would be acceptable for the federal government to prevent this website from moderating its own comments as it sees fit — or, that, under Section 230(c)(2), we should be liable for banning troublesome users from our own property?

If not, one must wonder why not. Traditionally, the pair explains, “the common law . . . viewed persons serving as common carriers as privileged by government.” And since Twitter and Facebook have achieved their “dominance with substantial government privileges, including privileges they sought for serving as a conduit for information,” the government is within its powers to set whatever terms it likes. The primary trouble with this argument rests upon the word “privileged.” It is true that Twitter and Facebook “benefit” from Section 230. But, because every other website and service provider in the market benefits, too, it’s hard to see where the “privilege” comes in. At root, Section 230 is nothing more glamorous or complicated than a liability-routing mechanism that governs who may be held liable for civil and criminal penalties that result from unreviewed speech online. Establishing such rules has been a core government function since the Founding, but only rarely has it been claimed by conservatives that, as a thank you for doing its job, the government should be accorded sweeping oversight powers that circumvent the Bill of Rights.

To get around these objections, Hamburger and Morell propose that Twitter, Facebook, and Co. are different because they are so big that they have, in effect, become public-serving monopolies. “When a company offers its services to the public,” they note, “it can qualify as a common carrier in one of two ways”:

It can serve a public function, so that even a small bus company can be treated as a common carrier. Or it can enjoy market dominance — when the services of one or a few companies are so prevalent as to leave the public with little alternative.

Hamburger and Morell seem to believe that the major players in the industry match both of these descriptions. The “large tech companies” the pair submits, “serve a public function, providing the public square or conduit for the information age. We meet and communicate on their services or platforms much more than on the grass of the village green.” To illustrate their supposed dominance, they draw an analogy from the days of yore: “Nineteenth-century telegraph companies,” they observe, “were treated as common carriers, and then telephone companies, and then some forms of television. Communications technologies change, and each is different, but the legal analysis still fits.”

But it doesn’t fit — not at all — for not only do Hamburger and Morell also overstate just how important social media is within the American context, they badly misrepresent how its major players fit within the technical infrastructure of the web.

Historically, a telegraph line that was erected, maintained, and operated by, say, the Acme Telegraph Company of America was destined to serve as an exclusive conduit between stations that were erected, maintained, and operated by the Acme Telegraph Company of America. Obviously, no such limitations are attached to an Internet connection, which, in almost every case, serves as nothing less than a tap into the ether. By design, the Internet is capable of hosting a virtually endless number of different protocols, as well of routing packets between any number of different endpoints, irrespective of who happens to own or control them. If we are to take seriously the analogy provided by Hamburger and Morell, it seems clear that we must see Twitter — which is just one website among billions, and which has nothing approaching a monopoly on online speech — as equivalent not to the telegraph line, but to one of the telegraph line’s many customers. Sitting at home in front of their phones or computers, users of the Internet can choose to use their connection to visit anywhere they wish. They can use Twitter and Facebook every day or they can choose never to use Twitter or Facebook, and whichever option they select will have no bearing whatsoever on their broader access to the web. It is true that Twitter and Facebook are relatively popular. It is not true that this makes them special.

I use the term “relatively popular” deliberately. To those of us who work in politics, it may feel as if the whole world is concentrated on a handful of cloud services, but it’s really not. As studies show, most Americans are not on Twitter; most of those who are on Twitter barely use it; and those who both are on it and use it regularly tend not to use it to talk about current affairs. Facebook is a little more popular than Twitter — especially among those who want to talk politics — but the idea that it is more popular than the proverbial “village green” is simply false. The vast majority of the political conversations conducted in this country are held a long way away from any of the sites that Hamburger and Morell hope to regulate: at home, in restaurants, in cars and planes, at local meetings, by email, on listservs, in school playgrounds, at rallies and town halls, on television and the radio, and so on. Now, as ever, nobody needs Big Tech to debate current affairs. And besides, what exactly is Twitter supposed to have a monopoly on? 280-character messages? When one thinks about it a little more carefully, one can see that the claim that Twitter is a “monopoly” because it has its own take on communication is akin to the idea that the Beatles were a “monopoly” because nobody else could play music in exactly the way they did. That is: It’s nonsense.

Oddly enough, there is an element within the technological chain that could plausibly be compared to the “telegraph line,” and that is the end-point connection your ISP provides from the street to your house. Unlike with social media, most Americans do not have a meaningful choice as to which provider they use, which means that, if that provider were to begin blocking access to sites and services of which it disapproved, users would have little recourse. If Congress were to decide that your ISP is functionally equivalent to your phone provider, and to prohibit any content- or destination-based discrimination as a result, it would have a case.

And yet, back in 2015, when the Obama administration got as close to this as anyone ever has, many of the same conservatives who are now trying to redefine terms such as “common carrier” threw a fit — objecting not only to the FCC’s (clear) abuse of statutory authority, but to the very notion that such regulation would represent an improvement to the status quo. (For the record: I agreed with those conservatives.) “Net Neutrality,” as that plan was called, was not precisely the same thing as a ban on viewpoint discrimination, but, by declaring ISPs as common carriers and requiring that providers treat all traffic equally, its implementation would undoubtedly have made such a change easier. It would be extremely peculiar if the critics of Silicon Valley were to ignore an area such as this, in which the “common carrier” model could plausibly obtain, in favor of advancing the outlandish theory that certain popular websites simply must sit outside of the quotidian protection that the Constitution provides.

Philip Hamburger’s most famous academic work has focused upon the claim that the American “administrative state” is not merely bad for the health of the republic, but that under our established constitutional order it is flatly illegal. If he and his co-author truly want to understand why it would be a bad idea to find a pretext to hand control of Silicon Valley over to a modernized Interstate Commerce Commission, they need look no further than to the forceful and comprehensive explanations that, in a different time and place, Hamburger himself has done yeoman’s work to deliver.