9 ms·

Social Media Platforms as Common Carriers? [pdf]

108 points by amadeuspagel 5y ago

uniqueuid 5y ago
For context: This paper argues that online platforms constitute a sort of "infrastructure" similar to utilities, and that they should be regulated to guarantee equal access. This idea is not new - it has been discussed under different terms, e.g. with relation to "must carry"-rules for cable providers. To simplify a bit, the argument boils down to the question of liability and responsibility for content curation. Platforms either curate content and are liable; in this scenario, they may be held accountable within media regulatory norms. Or they don't curate and provide equal access, then they aren't liable and free from media regulatory normative standards. Note that the US' pretty exceptional take on free speech (as an untouchable right) very much complicates this simplified description.
- no-dr-onboard 5y ago
  Having only read the introduction of this paper myself, this seems to be an apt summary of its contents. Also worth noting that the language in this paper is very approachable and rife with footnotes that often point to past legal decisions, if not precedents. Even if you don't agree with the thesis of this paper, it still makes for an eloquent and informative read of one side of the aisle.
  - uniqueuid 5y ago
    Well, it is a scholarly law paper. [edit] To clarify: Being a scholarly law paper means that (1) it is well-documented and thoroughly researched, but also (2) it may employ words that seem to have a common-sense meaning but really don't. Things such as "fair", "bias", "access", "responsible" etc. have very precise legal meanings that are not readily apparent.
- Causality1 5y ago
  I think this is only an issue because there is no public digital infrastructure. We need an "internet post office" whose only rules are the law, operates at-cost for users, and is completely free of liability. For example, you can't sue the post office if someone mails a pirated DVD. Would it be used almost exclusively by extremists and lunatics? Probably, but I still think it's worth having if only in light of all the HN stories about how some account slip-up at Google utterly ruined someone's life. Everyone deserves an email address they can never lose access to.
  - uniqueuid 5y ago
    Whether this is a good idea is seen differently in different countries. Countries with strong public service broadcasters (e.g. the BBC in the UK) tend to consider state-run information infrastructure a good idea, at least in a dual system including private corporations. Countries without public service media see private marked actors as perfectly sufficient. Needless to say, the US is squarely the second type.
  - dageshi 5y ago
    Isn't that sort of basically email now? If you sub to the mailing list of "extremists and lunatics" then you'll probably get your email on extreme and lunatic issues. The issue is, the extremists and lunatics don't just want email, they want twitter, facebook and all the inherent amplification capabilities of both. Not just a 1 to 1 message, not even a 1 to many messages but full on advertising to potentially interested users the same as the cat pics/videos get.
  - satyrnein 5y ago
    Do extremists and lunatics want their email handled by the government?
  - cvwright 5y ago
    Interestingly, there are hints that some countries are looking into providing Matrix accounts for all of their citizens. I don't think there's been a formal announcement yet, but it was mentioned in one of their Matrix Live videos a couple of weeks ago. Personally, I see pluses and minuses. Yay, free Matrix for everyone. Boo, your government can monitor everything you do on that server.
- ergot_vacation 5y ago
  The advantage of the paper is that it has a great deal of detail and research, done apparently by someone with actual knowledge of the law and case history in question. Usual discussions of the common carrier or public space argument tend to stop at a surface level because everyone involved in the discussion only has basic knowledge and training, so it's interesting to see it more carefully examined. As just one example, it argues that social media companies are not necessarily protected from being compelled to host content they disagree with simply because it would be "compelled speech," as stated in the rejection of recent Florida legislation. There are a number of existing cases where entities were compelled to do just that because they were operating a public space, even if privately owned (a shopping mall for example). Agree or disagree, this is information I wasn't aware of (and probably a lot of readers here as well), so it's interesting information to have.
- jasode 5y ago
  >, and that they should be regulated to guarantee equal access. You mentioned the UK BBC in another comment. Here are some examples of BBC censorship: https://en.wikipedia.org/wiki/Censorship_in_the_United_Kingdom#Radio https://en.wikipedia.org/wiki/Censorship_in_the_United_Kingd... If the government-run BBC sometimes censors certain topics, I'm confused as to how that same government becomes a watchdog & enforcer over private corporations designated as "common carrier" and not censor. In other words, what higher power over the UK government forces them not to censor? There's an inherent contradiction enforcing an "equal access" law because the government itself doesn't follow it. This has unavoidable effects on government regulation of the private corporations it oversees. The "common carrier" designation is easy to implement when communication is point-to-point with paid subscriptions (e.g. telephones) -- instead of broadcast funded with ads or government taxes (e.g. Facebook/Twitter, BBC). There is no government in the world that allows broadcast of any topic without interference.
  - HPsquared 5y ago
    It's more like publishing than broadcast. Somewhere in between those two I think. Edit: the difference comes in where there are feeds and recommendations popping up to users who haven't previously subscribed to something. That and the volume/media.
  - uniqueuid 5y ago
    This is a tangential argument, but of course government-provided media are not devoid of censorship/bias. That's because nobody is. The market is also not devoid of censorship/bias, neither in its supply of information nor in the resulting consumption. Public service broadcasters are not about alleviating censorship; they are primarily a means of providing a solid base level of access to information. They cannot reasonably provide access to all information. Your remarks on oversight are a very valid concern; that's why Germany, for example, has publicly funded (not state-funded; they get a mandatory fee from citizens over which the state has no control) but state-independent public service institutions. There's much more to the argument, but a central point here is the shift from regulating supply to regulating consumption. One can trivially argue that platforms are harmless because any censorship they implement is not total in the sense of absolute government censorship - you're free to publish your stuff elsewhere. But today, more and more countries are seeking to ensure healthy consumption of information, and to enable this, they need to intervene in platforms' content curation. It's a dangerous argument, of course, because this is precisely what totalitarian states are doing. But - and this is important - regulating content is something that democracies have always had to do, e.g. banning libelous content, revenge porn etc. etc.
uniqueuid 5y ago
By the way, one of the colleagues thanked in this piece is Eric Goldman, who has written the highly recommended paper titled "Search Engine Bias and the Demise of Search Engine Utopianism" [1]. He also frequently writes at [2] [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892 [2] https://blog.ericgoldman.org/archives/author/eric-goldman https://blog.ericgoldman.org/archives/author/eric-goldman [edit] While I'm at it, one of the best summaries of the whole neutrality debate is from Laura Granka [3], and Goldman has his own summary here [4] [3] Granka, L. A. (2010). The Politics of Search: A Decade Retrospective. The Information Society, 26(5), 364–374. https://doi.org/10.1080/01972243.2010.511560 https://doi.org/10.1080/01972243.2010.511560 [4] Goldman, E. (2011). Revisiting Search Engine Bias (SSRN Scholarly Paper ID 1860402). Social Science Research Network. https://papers.ssrn.com/abstract=1860402 https://papers.ssrn.com/abstract=1860402
advisedwang 5y ago
I like the articles separation between hosting and other activities. I think having content available by URL and in the feed of friends/subscribers feed but never shown in discovery features to the general public is a good compromise between allowing expression and preventing extremism proliferating.
Animats 5y ago
This can be viewed as an alternative under antitrust law. If you get big enough, either you get broken up, or you have to become a regulated monopoly. You get to pick. "Big enough" by EU standards is where there are less than four competitors of reasonable size and reach. The US tends to tolerate a higher threshold. Amy Klobuchar's "Antitrust" book suggests 40% market share as the threshold.
- uniqueuid 5y ago
  A very important point. Antitrust has entirely different conditions to be met. The EU conditions are even more complicated than < 4 competitors and are evaluated in-depth in each case. At the same time, antitrust law has been attempted as a mechanism for ensuring freedom of information, although largely unsuccessfully (due to internal growth; EU antitrust law is predominantly geared towards blocking acquisitions afaik). Now, media regulation is an entirely different regulatory approach: It has more normative roots, and in some cases is even precautionary: Allowing sanctioning in the face of plausible threats. That's a very sharp sword and the reason why platforms fear it. [edit] For completeness, the definition of "big enough" in the EU is called dominant position and is defined in the Hoffman-La Roche case. It means being so powerful that competitors can no longer act independently. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61976CJ0085 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61...)
- temp8964 5y ago
  I don't think market share is much relevant here. Small cell phone carriers can ban customer text message conversation based on political opinion, but not AT&T? On page 8: > Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be, but are highly competitive cell phone providers?
- tedunangst 5y ago
  Would a regulated monopoly be subject to community decency rules? Would twitter be fined every time somebody posts Janet Jackson's nipple?
  - deleted 5y ago
naasking 5y ago
So far it seems like a fairly well balanced analysis, which I think addresses the censorship concerns without violating these companies' First Amendment rights: I’ll begin by asking in Part I whether it’s wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their “hosting function”—the distribution of an author’s posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed. I’ll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms’ own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents [...] And then I’ll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions. On balance, I’ll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell commoncarrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms’ recommending certain posts to users who aren’t already subscribed to their authors’ feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.
Buttons840 5y ago
If social media becomes a common carrier, but ISPs do not, can Facebook just host their service on their own ISP and block unwanted users at the ISP level? "It's not Facebook blocking the user, it's the ISP, which happens to be the only ISP we host Facebook on." All just poking holes in the idea that social media can be a common carrier while the ISPs are not. Somehow the literal carrier avoided becoming the common carrier.
- temp8964 5y ago
  How can the ISP ban Facebook accounts, if they are separated entities? Or do you mean the ISP bans Facebook urls related to certain accounts / posts? Not sure how this gonna work.
  - tedunangst 5y ago
    Facebook allows anyone to sign up and access the site through user.facebook.com. All actual hosting is outsourced to NotFacebook ISP because the cloud. NotFacebook totally at their own discretion null routes baduser.facebook.com.
  - Buttons840 5y ago
    Maybe Facebook's ISP of choice requires handing over the TLS private keys?
- rcpt 5y ago
  > just host their service on their own ISP Good luck
- singlow 5y ago
  That's not how laws work.
  - Buttons840 5y ago
    Your right, this legal "hack" would probably be frowned upon by a judge, but it does demonstrate how silly it is that the literal carrier is not the one considered the "common carrier". It would be illegal for Facebook to arbitrarily prevent someone from accessing Facebook, and legal for Comcast to arbitrarily prevent someone from accessing Facebook. And back to my original proposal, if Facebook and Comcast came to some sort of deal, perhaps Comcast could block unwanted user on behalf of Facebook.
klyrs 5y ago
My biggest technical issue with this "common carrier" movement is spam. The author mentions it, but seems to suggest that users can simply block or ignore spammers. As somebody who witnessed the commercialization of the internet, I find this extremely naive. We generally think of email as a "common carrier," but even there, spam is blocked. Blocking spam is censorship. Failure to automatically detect 1% of spam will still overwhelm non-spam content. If I lose common carrier status because I'm blocking spam, and thus section 230 protections, am I on the hook if I fail to block a fraudulent spam comment that leads to a user being harmed?
- hpoe 5y ago
  I guess part of my question with spam lately is why can't we just go after the spammers? It seems to me that acting as a public nuisance would be enough for the government to take action.
  - chrisco255 5y ago
    Because most of the spam is coming from other countries and the cost of tracking down every spammer is prohibitive.
- chr1 5y ago
  User has control over what is marked as spam, and can see spam messages if needed. If you block some content the way gmail blocks spam, it won't be censorship.
  - thaumasiotes 5y ago
    > If you block some content the way gmail blocks spam, it won't be censorship. Are you thinking of the spam folder? Because the primary way that gmail blocks "spam" is by never delivering the email at all. Not to your spam folder, not anywhere. I learned about this when I was unable to receive email from a personal friend.
    - chr1 5y ago
amanaplanacanal 5y ago
I'm not seeing what problem is being solved here. If, as he points out early in the paper, common carrier status in the US would only apply to hosting, but not recommendation engines and the like, what is the gain? Anybody can already find hosting somewhere. It's the discoverability that the platforms provide that's the secret sauce.
- amadeuspagel 5y ago
  > If, as he points out early in the paper, common carrier status in the US would only apply to hosting, but not recommendation engines and the like, what is the gain? There's something between hosting and recommendations, which the paper suggests common carrier status could also be applied to, and that's subscriptions. So youtube wouldn't have to recommend Alex Jones' videos, but if people subscribe to his channel, it would have to show his videos to them. > Anybody can already find hosting somewhere. Even if that's the case, taking away their current hosting disrupts people's speech.
deleted 5y ago
[deleted]
throwawaysea 5y ago
Social media above a certain size should be treated as common carriers. There are no reasonable alternatives to them, and today, common public activities activities that are core to our life are conducted on these large platforms. This is not a matter of protecting the freedom of companies to do as they wish - we already regulate companies and restrict their activities in many ways. Private power utilities cannot discriminate against their customers based on their speech or political viewpoints, for example. The same regulations can be enacted to govern these platforms. I often see arguments saying that someone who is deplatformed/demonetized on these service can just use an alternate service, but I find that to not be the case in practice. Consider that Twitter, Facebook, and YouTube have more users than virtually all nations. Their network effects are core to what the product is, which is why there aren't suitable alternatives (especially when they enact censorship in unison). Telling someone to just go use a different platform is like telling someone that they don't need their power utility, since they can just stick a windmill on their property instead. Finally, I am greatly concerned that these large privately-controlled platforms are essentially outsourcing government-driven censorship and also violating election laws. For example when conservatives did form their own platform on Parler, AOC called for the Apple and Google app stores to ban Parler after the Jan 6 capitol riot (https://greenwald.substack.com/p/how-silicon-valley-in-a-show-of-monopolistic https://greenwald.substack.com/p/how-silicon-valley-in-a-sho...). If a sitting member of the government pressures private organizations to censor others, it should be considered a violation of the first amendment. Leaving aside the technicalities of law, it is unethical and immoral even otherwise and completely in conflict with classically liberal values. Actions taken by these companies to suppress certain political speech in this manner also amount to a donation to the other side. This isn't recognized as "campaign funding" but it is probably more effective than campaign funding at this point. We need to do a better job of recognizing the gifts-in-kind coming out of Silicon Valley tech companies towards political parties based on the ideas they suppress/amplify/etc.
- Server6 5y ago
  Here's the thing, you don't NEED social media. It's not a utility. Your quality of life won't diminish if you don't have access to it. I suggest deleting it and not using it for a few months and see how you feel. I 100% guarantee your mental health will improve.
deleted 5y ago
[deleted]
Majromax 5y ago
To me, the question is how a common carrier status can coexist with content curation and promotion. Looking at the ur-example of the phone company, AT&T doesn't try to preemptively place calls that a household "might be interested in based on analytics." The modern social media landscape, however, is dominated by "the algorithm." Youtube lives on its recommendations; Twitter wants you to keep refreshing its feed; even Hacker News tries to sort the front page by a combination of novelty and interest. In my opinion, this is a continuous, editorial judgment by the outlet, and it is very different from the idea of a "neutral public square" that exists as an objective point in space. The fight isn't really about whether an individual person should have a right to send messages to other individual people on social media platforms; it's about whether the media platform has a responsibility to actively promote views without regard for their content. It's not about forcing the "shopping mall" to allow protesters (PruneYard, from the article), but instead it's about forcing the "shopping mall" to advertise that it's hosting protesters and include them on its maps and business lists. (Edit to add:) The article discusses this point somewhat in its section E, related to compelled recommendations, but I think the topic deserves much broader analysis. A "legally viewpoint-neutral Twitter" would be a Pyrrhic victory for proponents if Twitter could still restrict user's visibility to direct subscribers/replies only, denying the public part of its platform.
- amadeuspagel 5y ago
  > A "legally viewpoint-neutral Twitter" would be a Pyrrhic victory for proponents if Twitter could still restrict user's visibility to direct subscribers/replies only, denying the public part of its platform. I don't agree. I think that would be a huge victory. It would certainly not be pyrrhic in the sense that we would lose anything.
- slownews45 5y ago
  I think you will be surprised at how DISENGAGED folks are vis a vis a phone call on their AT&T line. Why? Because a damn ton of them are spam / scams. So yes, ATT doesn't filter calls, and users have learned not to answer them.
  - 5y ago
bosswipe 5y ago
So many supposedly principled free-market libertarians and conservatives tying themselves in knots so that Trump can continue to push his lies. The american conservative movement, like nationalists everywhere, have no principles bedsides power. And with the new permanent conservative judiciary there are many victories in their future. Our democracy is in peril but if you look at places like Russia and China they seem stable enough, maybe the death of the American world order won't be so bad.
jmull 5y ago
These social media platforms don’t act like common carriers. It’s a fundamental necessity of the business that social media platforms be able to deliver enough good content that users want to join and engage while filtering out enough bad content that users don’t get fed up and leave. So they implement all kinds of mechanisms designed to promote and emphasize “good” content and minimize “bad” content. It’s important to understand that “good” means good for business and “bad” means bad for business, and of course there are sometimes short-term vs long-term considerations to balance. Mechanisms like search rank algorithms, retweets, comments, likes, content policies, moderation, flags, bans, etc. If the government takes some of these mechanisms away from a social media platform they will (1) fundamentally change the nature of the social media platform — quite possibly breaking what made it a desirable place to share in the first place; (2) prevent these companies from making business decisions in their own business interests. Imagine HN with no moderation, or your favorite narrow-interest subreddits full of spam and political posts with no one allowed to moderate them or ban the crap posters. It entirely defeats the purpose. Is this really what we want? Also, remember that platforms much more permissive than the big social media platforms exist that are accessible over the same internet, not to mention plain old web sites. So what exactly is the need to force, say Facebook or Twitter to have very permissive content policies? I think what many people concerned with this actually want is for social media platforms to continue to moderate and filter bad content and promote good content, but they want to tell the platform what “good” and “bad” mean according to their own opinions rather than letting them determine that for themselves.
- fabbari 5y ago
  But all that spam would come into play with "generic" feeds. You don't expect spam from people, groups and organizations that you subscribe to. You can think of "discovery feeds" as an addon - and maybe even not provided by the same company providing the social network itself. Cherry on top? You would have to actively subscribe to those feeds, forcing them to be interesting/relevant.
  - GVIrish 5y ago
    But you're back to the problem of breaking the business model of these companies. If everything was opt-in, subscription-only, that would fundamentally change these platforms. Even then, with zero moderation, feeds that people subscribe to could still get overwhelmed by trolling and vitriol.
timoth3y 5y ago
Be careful what you wish for. If social media platforms are considered common carriers they will have a 'duty to serve." They will need to provide their service to anyone not judged by a court to be breaking the law. That includes spam, pornography, and many forms of online abuse and harassment. There is a strong case to be made that ISPs should be common carriers, since they don't (and should not) know what is contained in the packets they transport. But treating Twitter or Facebook or Hacker News as common carriers makes no sense. They are not "carriers" who are neutrally transmitting data they have no control over. That's not what they want to be, and that's not want their users want them to be. 4chan has it's place, but most people don't want to whole web to look like that. == Edit: Keep in mind the the law is a blunt interment. Claiming small social media sites don't need to worry about laws restricting big social media sites, is like claiming that honest citizens don't need to worry about laws targeting terrorists.
- wmf 5y ago
  The point of this paper is that bad stuff would exist but you'd never see it unless you explicitly seek it out. You might not even be able to search for it; you might have to paste an exact URL to get it.
  - triceratops 5y ago
    How is any of what you described different from the situation today? Except that said URL won't contain a TwitFace domain name if they don't want you on their platform. Is the domain name really that important, so long as the content is available?
    - comex 5y ago
      For one thing, Volokh suggests that Twitter would also have to allow you to follow @BadStuff and then view its posts in your timeline – as long as you set your timeline to chronological mode. If you use the algorithmic timeline, on the other hand, he claims that you're now relying on Twitter to provide a kind of judgment on what tweets are better than others, so Twitter would then have the First Amendment right to refuse to show you some users' tweets entirely. Personally, I suspect that any law like this would result in Twitter simply removing the chronological timeline altogether. In addition, although the paper's title says "social media", Volokh also suggests the services which banned Parler – Google and Apple's app stores, and AWS – could also be subject to common carrier regulations. For those kinds of services, recommendation algorithms and domain names are irrelevant.
js8 5y ago
I think what happened with "social media" is a digital equivalent of land enclosures. In the past, there was Internet content, let's simplify it to blogs, which was available publicly for anybody to see, and then there was content aggregators/filters (search engines, blog aggregators) which selected and curated the content. But anybody could come and do that. Social media effectively "privatized" the content, now you have the content within their walled garden, and only they have monopoly on content filtering and aggregation (within their realm). This allowed them to monetize the advertisements on this content. So I believe wanting "social media as common carriers" really means going back to the state before they existed, where anybody could host content and anybody could filter content. I don't think it will happen, because then the business model is dead, and the force of capitalism will not allow it (just like there is very little public land now).

108 points by amadeuspagel 5y ago

For context: This paper argues that online platforms constitute a sort of "infrastructure" similar to utilities, and that they should be regulated to guarantee equal access. This idea is not new - it has been discussed under different terms, e.g. with relation to "must carry"-rules for cable providers. To simplify a bit, the argument boils down to the question of liability and responsibility for content curation. Platforms either curate content and are liable; in this scenario, they may be held accountable within media regulatory norms. Or they don't curate and provide equal access, then they aren't liable and free from media regulatory normative standards. Note that the US' pretty exceptional take on free speech (as an untouchable right) very much complicates this simplified description.

no-dr-onboard 5y ago
Having only read the introduction of this paper myself, this seems to be an apt summary of its contents. Also worth noting that the language in this paper is very approachable and rife with footnotes that often point to past legal decisions, if not precedents. Even if you don't agree with the thesis of this paper, it still makes for an eloquent and informative read of one side of the aisle.
- uniqueuid 5y ago
  Well, it is a scholarly law paper. [edit] To clarify: Being a scholarly law paper means that (1) it is well-documented and thoroughly researched, but also (2) it may employ words that seem to have a common-sense meaning but really don't. Things such as "fair", "bias", "access", "responsible" etc. have very precise legal meanings that are not readily apparent.
Causality1 5y ago
I think this is only an issue because there is no public digital infrastructure. We need an "internet post office" whose only rules are the law, operates at-cost for users, and is completely free of liability. For example, you can't sue the post office if someone mails a pirated DVD. Would it be used almost exclusively by extremists and lunatics? Probably, but I still think it's worth having if only in light of all the HN stories about how some account slip-up at Google utterly ruined someone's life. Everyone deserves an email address they can never lose access to.
- uniqueuid 5y ago
  Whether this is a good idea is seen differently in different countries. Countries with strong public service broadcasters (e.g. the BBC in the UK) tend to consider state-run information infrastructure a good idea, at least in a dual system including private corporations. Countries without public service media see private marked actors as perfectly sufficient. Needless to say, the US is squarely the second type.
- dageshi 5y ago
  Isn't that sort of basically email now? If you sub to the mailing list of "extremists and lunatics" then you'll probably get your email on extreme and lunatic issues. The issue is, the extremists and lunatics don't just want email, they want twitter, facebook and all the inherent amplification capabilities of both. Not just a 1 to 1 message, not even a 1 to many messages but full on advertising to potentially interested users the same as the cat pics/videos get.
- satyrnein 5y ago
  Do extremists and lunatics want their email handled by the government?
- cvwright 5y ago
  Interestingly, there are hints that some countries are looking into providing Matrix accounts for all of their citizens. I don't think there's been a formal announcement yet, but it was mentioned in one of their Matrix Live videos a couple of weeks ago. Personally, I see pluses and minuses. Yay, free Matrix for everyone. Boo, your government can monitor everything you do on that server.
ergot_vacation 5y ago
The advantage of the paper is that it has a great deal of detail and research, done apparently by someone with actual knowledge of the law and case history in question. Usual discussions of the common carrier or public space argument tend to stop at a surface level because everyone involved in the discussion only has basic knowledge and training, so it's interesting to see it more carefully examined. As just one example, it argues that social media companies are not necessarily protected from being compelled to host content they disagree with simply because it would be "compelled speech," as stated in the rejection of recent Florida legislation. There are a number of existing cases where entities were compelled to do just that because they were operating a public space, even if privately owned (a shopping mall for example). Agree or disagree, this is information I wasn't aware of (and probably a lot of readers here as well), so it's interesting information to have.
jasode 5y ago
>, and that they should be regulated to guarantee equal access. You mentioned the UK BBC in another comment. Here are some examples of BBC censorship: https://en.wikipedia.org/wiki/Censorship_in_the_United_Kingdom#Radio https://en.wikipedia.org/wiki/Censorship_in_the_United_Kingd... If the government-run BBC sometimes censors certain topics, I'm confused as to how that same government becomes a watchdog & enforcer over private corporations designated as "common carrier" and not censor. In other words, what higher power over the UK government forces them not to censor? There's an inherent contradiction enforcing an "equal access" law because the government itself doesn't follow it. This has unavoidable effects on government regulation of the private corporations it oversees. The "common carrier" designation is easy to implement when communication is point-to-point with paid subscriptions (e.g. telephones) -- instead of broadcast funded with ads or government taxes (e.g. Facebook/Twitter, BBC). There is no government in the world that allows broadcast of any topic without interference.
- HPsquared 5y ago
  It's more like publishing than broadcast. Somewhere in between those two I think. Edit: the difference comes in where there are feeds and recommendations popping up to users who haven't previously subscribed to something. That and the volume/media.
- uniqueuid 5y ago
  This is a tangential argument, but of course government-provided media are not devoid of censorship/bias. That's because nobody is. The market is also not devoid of censorship/bias, neither in its supply of information nor in the resulting consumption. Public service broadcasters are not about alleviating censorship; they are primarily a means of providing a solid base level of access to information. They cannot reasonably provide access to all information. Your remarks on oversight are a very valid concern; that's why Germany, for example, has publicly funded (not state-funded; they get a mandatory fee from citizens over which the state has no control) but state-independent public service institutions. There's much more to the argument, but a central point here is the shift from regulating supply to regulating consumption. One can trivially argue that platforms are harmless because any censorship they implement is not total in the sense of absolute government censorship - you're free to publish your stuff elsewhere. But today, more and more countries are seeking to ensure healthy consumption of information, and to enable this, they need to intervene in platforms' content curation. It's a dangerous argument, of course, because this is precisely what totalitarian states are doing. But - and this is important - regulating content is something that democracies have always had to do, e.g. banning libelous content, revenge porn etc. etc.

uniqueuid 5y ago

By the way, one of the colleagues thanked in this piece is Eric Goldman, who has written the highly recommended paper titled "Search Engine Bias and the Demise of Search Engine Utopianism" [1]. He also frequently writes at [2] [1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892 [2] https://blog.ericgoldman.org/archives/author/eric-goldman https://blog.ericgoldman.org/archives/author/eric-goldman [edit] While I'm at it, one of the best summaries of the whole neutrality debate is from Laura Granka [3], and Goldman has his own summary here [4] [3] Granka, L. A. (2010). The Politics of Search: A Decade Retrospective. The Information Society, 26(5), 364–374. https://doi.org/10.1080/01972243.2010.511560 https://doi.org/10.1080/01972243.2010.511560 [4] Goldman, E. (2011). Revisiting Search Engine Bias (SSRN Scholarly Paper ID 1860402). Social Science Research Network. https://papers.ssrn.com/abstract=1860402 https://papers.ssrn.com/abstract=1860402

advisedwang 5y ago

I like the articles separation between hosting and other activities. I think having content available by URL and in the feed of friends/subscribers feed but never shown in discovery features to the general public is a good compromise between allowing expression and preventing extremism proliferating.

Animats 5y ago

This can be viewed as an alternative under antitrust law. If you get big enough, either you get broken up, or you have to become a regulated monopoly. You get to pick. "Big enough" by EU standards is where there are less than four competitors of reasonable size and reach. The US tends to tolerate a higher threshold. Amy Klobuchar's "Antitrust" book suggests 40% market share as the threshold.

uniqueuid 5y ago
A very important point. Antitrust has entirely different conditions to be met. The EU conditions are even more complicated than < 4 competitors and are evaluated in-depth in each case. At the same time, antitrust law has been attempted as a mechanism for ensuring freedom of information, although largely unsuccessfully (due to internal growth; EU antitrust law is predominantly geared towards blocking acquisitions afaik). Now, media regulation is an entirely different regulatory approach: It has more normative roots, and in some cases is even precautionary: Allowing sanctioning in the face of plausible threats. That's a very sharp sword and the reason why platforms fear it. [edit] For completeness, the definition of "big enough" in the EU is called dominant position and is defined in the Hoffman-La Roche case. It means being so powerful that competitors can no longer act independently. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61976CJ0085 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61...)
temp8964 5y ago
I don't think market share is much relevant here. Small cell phone carriers can ban customer text message conversation based on political opinion, but not AT&T? On page 8: > Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be, but are highly competitive cell phone providers?
tedunangst 5y ago
Would a regulated monopoly be subject to community decency rules? Would twitter be fined every time somebody posts Janet Jackson's nipple?
- deleted 5y ago

naasking 5y ago

So far it seems like a fairly well balanced analysis, which I think addresses the censorship concerns without violating these companies' First Amendment rights: I’ll begin by asking in Part I whether it’s wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their “hosting function”—the distribution of an author’s posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed. I’ll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms’ own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents [...] And then I’ll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions. On balance, I’ll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell commoncarrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms’ recommending certain posts to users who aren’t already subscribed to their authors’ feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.

Buttons840 5y ago

If social media becomes a common carrier, but ISPs do not, can Facebook just host their service on their own ISP and block unwanted users at the ISP level? "It's not Facebook blocking the user, it's the ISP, which happens to be the only ISP we host Facebook on." All just poking holes in the idea that social media can be a common carrier while the ISPs are not. Somehow the literal carrier avoided becoming the common carrier.

temp8964 5y ago
How can the ISP ban Facebook accounts, if they are separated entities? Or do you mean the ISP bans Facebook urls related to certain accounts / posts? Not sure how this gonna work.
- tedunangst 5y ago
  Facebook allows anyone to sign up and access the site through user.facebook.com. All actual hosting is outsourced to NotFacebook ISP because the cloud. NotFacebook totally at their own discretion null routes baduser.facebook.com.
- Buttons840 5y ago
  Maybe Facebook's ISP of choice requires handing over the TLS private keys?
rcpt 5y ago
> just host their service on their own ISP Good luck
singlow 5y ago
That's not how laws work.
- Buttons840 5y ago
  Your right, this legal "hack" would probably be frowned upon by a judge, but it does demonstrate how silly it is that the literal carrier is not the one considered the "common carrier". It would be illegal for Facebook to arbitrarily prevent someone from accessing Facebook, and legal for Comcast to arbitrarily prevent someone from accessing Facebook. And back to my original proposal, if Facebook and Comcast came to some sort of deal, perhaps Comcast could block unwanted user on behalf of Facebook.

klyrs 5y ago

My biggest technical issue with this "common carrier" movement is spam. The author mentions it, but seems to suggest that users can simply block or ignore spammers. As somebody who witnessed the commercialization of the internet, I find this extremely naive. We generally think of email as a "common carrier," but even there, spam is blocked. Blocking spam is censorship. Failure to automatically detect 1% of spam will still overwhelm non-spam content. If I lose common carrier status because I'm blocking spam, and thus section 230 protections, am I on the hook if I fail to block a fraudulent spam comment that leads to a user being harmed?

hpoe 5y ago
I guess part of my question with spam lately is why can't we just go after the spammers? It seems to me that acting as a public nuisance would be enough for the government to take action.
- chrisco255 5y ago
  Because most of the spam is coming from other countries and the cost of tracking down every spammer is prohibitive.
chr1 5y ago
User has control over what is marked as spam, and can see spam messages if needed. If you block some content the way gmail blocks spam, it won't be censorship.
- thaumasiotes 5y ago
  > If you block some content the way gmail blocks spam, it won't be censorship. Are you thinking of the spam folder? Because the primary way that gmail blocks "spam" is by never delivering the email at all. Not to your spam folder, not anywhere. I learned about this when I was unable to receive email from a personal friend.
  - chr1 5y ago

amanaplanacanal 5y ago

I'm not seeing what problem is being solved here. If, as he points out early in the paper, common carrier status in the US would only apply to hosting, but not recommendation engines and the like, what is the gain? Anybody can already find hosting somewhere. It's the discoverability that the platforms provide that's the secret sauce.

amadeuspagel 5y ago
> If, as he points out early in the paper, common carrier status in the US would only apply to hosting, but not recommendation engines and the like, what is the gain? There's something between hosting and recommendations, which the paper suggests common carrier status could also be applied to, and that's subscriptions. So youtube wouldn't have to recommend Alex Jones' videos, but if people subscribe to his channel, it would have to show his videos to them. > Anybody can already find hosting somewhere. Even if that's the case, taking away their current hosting disrupts people's speech.

deleted 5y ago

[deleted]

throwawaysea 5y ago

Social media above a certain size should be treated as common carriers. There are no reasonable alternatives to them, and today, common public activities activities that are core to our life are conducted on these large platforms. This is not a matter of protecting the freedom of companies to do as they wish - we already regulate companies and restrict their activities in many ways. Private power utilities cannot discriminate against their customers based on their speech or political viewpoints, for example. The same regulations can be enacted to govern these platforms. I often see arguments saying that someone who is deplatformed/demonetized on these service can just use an alternate service, but I find that to not be the case in practice. Consider that Twitter, Facebook, and YouTube have more users than virtually all nations. Their network effects are core to what the product is, which is why there aren't suitable alternatives (especially when they enact censorship in unison). Telling someone to just go use a different platform is like telling someone that they don't need their power utility, since they can just stick a windmill on their property instead. Finally, I am greatly concerned that these large privately-controlled platforms are essentially outsourcing government-driven censorship and also violating election laws. For example when conservatives did form their own platform on Parler, AOC called for the Apple and Google app stores to ban Parler after the Jan 6 capitol riot (https://greenwald.substack.com/p/how-silicon-valley-in-a-show-of-monopolistic https://greenwald.substack.com/p/how-silicon-valley-in-a-sho...). If a sitting member of the government pressures private organizations to censor others, it should be considered a violation of the first amendment. Leaving aside the technicalities of law, it is unethical and immoral even otherwise and completely in conflict with classically liberal values. Actions taken by these companies to suppress certain political speech in this manner also amount to a donation to the other side. This isn't recognized as "campaign funding" but it is probably more effective than campaign funding at this point. We need to do a better job of recognizing the gifts-in-kind coming out of Silicon Valley tech companies towards political parties based on the ideas they suppress/amplify/etc.

Server6 5y ago
Here's the thing, you don't NEED social media. It's not a utility. Your quality of life won't diminish if you don't have access to it. I suggest deleting it and not using it for a few months and see how you feel. I 100% guarantee your mental health will improve.

deleted 5y ago

[deleted]

Majromax 5y ago

To me, the question is how a common carrier status can coexist with content curation and promotion. Looking at the ur-example of the phone company, AT&T doesn't try to preemptively place calls that a household "might be interested in based on analytics." The modern social media landscape, however, is dominated by "the algorithm." Youtube lives on its recommendations; Twitter wants you to keep refreshing its feed; even Hacker News tries to sort the front page by a combination of novelty and interest. In my opinion, this is a continuous, editorial judgment by the outlet, and it is very different from the idea of a "neutral public square" that exists as an objective point in space. The fight isn't really about whether an individual person should have a right to send messages to other individual people on social media platforms; it's about whether the media platform has a responsibility to actively promote views without regard for their content. It's not about forcing the "shopping mall" to allow protesters (PruneYard, from the article), but instead it's about forcing the "shopping mall" to advertise that it's hosting protesters and include them on its maps and business lists. (Edit to add:) The article discusses this point somewhat in its section E, related to compelled recommendations, but I think the topic deserves much broader analysis. A "legally viewpoint-neutral Twitter" would be a Pyrrhic victory for proponents if Twitter could still restrict user's visibility to direct subscribers/replies only, denying the public part of its platform.

amadeuspagel 5y ago
> A "legally viewpoint-neutral Twitter" would be a Pyrrhic victory for proponents if Twitter could still restrict user's visibility to direct subscribers/replies only, denying the public part of its platform. I don't agree. I think that would be a huge victory. It would certainly not be pyrrhic in the sense that we would lose anything.
slownews45 5y ago
I think you will be surprised at how DISENGAGED folks are vis a vis a phone call on their AT&T line. Why? Because a damn ton of them are spam / scams. So yes, ATT doesn't filter calls, and users have learned not to answer them.
- 5y ago

bosswipe 5y ago

So many supposedly principled free-market libertarians and conservatives tying themselves in knots so that Trump can continue to push his lies. The american conservative movement, like nationalists everywhere, have no principles bedsides power. And with the new permanent conservative judiciary there are many victories in their future. Our democracy is in peril but if you look at places like Russia and China they seem stable enough, maybe the death of the American world order won't be so bad.

jmull 5y ago

These social media platforms don’t act like common carriers. It’s a fundamental necessity of the business that social media platforms be able to deliver enough good content that users want to join and engage while filtering out enough bad content that users don’t get fed up and leave. So they implement all kinds of mechanisms designed to promote and emphasize “good” content and minimize “bad” content. It’s important to understand that “good” means good for business and “bad” means bad for business, and of course there are sometimes short-term vs long-term considerations to balance. Mechanisms like search rank algorithms, retweets, comments, likes, content policies, moderation, flags, bans, etc. If the government takes some of these mechanisms away from a social media platform they will (1) fundamentally change the nature of the social media platform — quite possibly breaking what made it a desirable place to share in the first place; (2) prevent these companies from making business decisions in their own business interests. Imagine HN with no moderation, or your favorite narrow-interest subreddits full of spam and political posts with no one allowed to moderate them or ban the crap posters. It entirely defeats the purpose. Is this really what we want? Also, remember that platforms much more permissive than the big social media platforms exist that are accessible over the same internet, not to mention plain old web sites. So what exactly is the need to force, say Facebook or Twitter to have very permissive content policies? I think what many people concerned with this actually want is for social media platforms to continue to moderate and filter bad content and promote good content, but they want to tell the platform what “good” and “bad” mean according to their own opinions rather than letting them determine that for themselves.

fabbari 5y ago
But all that spam would come into play with "generic" feeds. You don't expect spam from people, groups and organizations that you subscribe to. You can think of "discovery feeds" as an addon - and maybe even not provided by the same company providing the social network itself. Cherry on top? You would have to actively subscribe to those feeds, forcing them to be interesting/relevant.
- GVIrish 5y ago
  But you're back to the problem of breaking the business model of these companies. If everything was opt-in, subscription-only, that would fundamentally change these platforms. Even then, with zero moderation, feeds that people subscribe to could still get overwhelmed by trolling and vitriol.

timoth3y 5y ago

Be careful what you wish for. If social media platforms are considered common carriers they will have a 'duty to serve." They will need to provide their service to anyone not judged by a court to be breaking the law. That includes spam, pornography, and many forms of online abuse and harassment. There is a strong case to be made that ISPs should be common carriers, since they don't (and should not) know what is contained in the packets they transport. But treating Twitter or Facebook or Hacker News as common carriers makes no sense. They are not "carriers" who are neutrally transmitting data they have no control over. That's not what they want to be, and that's not want their users want them to be. 4chan has it's place, but most people don't want to whole web to look like that. == Edit: Keep in mind the the law is a blunt interment. Claiming small social media sites don't need to worry about laws restricting big social media sites, is like claiming that honest citizens don't need to worry about laws targeting terrorists.

wmf 5y ago
The point of this paper is that bad stuff would exist but you'd never see it unless you explicitly seek it out. You might not even be able to search for it; you might have to paste an exact URL to get it.
- triceratops 5y ago
  How is any of what you described different from the situation today? Except that said URL won't contain a TwitFace domain name if they don't want you on their platform. Is the domain name really that important, so long as the content is available?
  - comex 5y ago
    For one thing, Volokh suggests that Twitter would also have to allow you to follow @BadStuff and then view its posts in your timeline – as long as you set your timeline to chronological mode. If you use the algorithmic timeline, on the other hand, he claims that you're now relying on Twitter to provide a kind of judgment on what tweets are better than others, so Twitter would then have the First Amendment right to refuse to show you some users' tweets entirely. Personally, I suspect that any law like this would result in Twitter simply removing the chronological timeline altogether. In addition, although the paper's title says "social media", Volokh also suggests the services which banned Parler – Google and Apple's app stores, and AWS – could also be subject to common carrier regulations. For those kinds of services, recommendation algorithms and domain names are irrelevant.

js8 5y ago

I think what happened with "social media" is a digital equivalent of land enclosures. In the past, there was Internet content, let's simplify it to blogs, which was available publicly for anybody to see, and then there was content aggregators/filters (search engines, blog aggregators) which selected and curated the content. But anybody could come and do that. Social media effectively "privatized" the content, now you have the content within their walled garden, and only they have monopoly on content filtering and aggregation (within their realm). This allowed them to monetize the advertisements on this content. So I believe wanting "social media as common carriers" really means going back to the state before they existed, where anybody could host content and anybody could filter content. I don't think it will happen, because then the business model is dead, and the force of capitalism will not allow it (just like there is very little public land now).