It is widely agreed that since the Restoring Internet Freedom Order’s repeal of the Obama-era FCC’s imposition of common carrier regulatory mandates on Internet service providers (ISPs), there has been no convincing evidence of any market failure or consumer harm attributable to the repeal. Nevertheless, it is widely assumed that when a third Democrat is confirmed as commissioner, the new Democratic majority at the agency will initiate a new “net neutrality” proceeding proposing to reinstate the now-repealed “Title II” common carrier classification of ISPs.
At the core of Title II are two key traditional common carrier mandates: the obligation to charge “reasonable” rates and to not unreasonably discriminate in the provision of service.
Given all the ongoing changes in the ISP marketplace – in the direction of more competition and consumer choice – and ever-increasing acknowledgements regarding the extent of the market dominance of the giant Internet platforms, such as Google, Facebook, Amazon, and Twitter, I wonder.
Specifically, I wonder whether this time around, if there is a forthcoming FCC rulemaking proceeding, the Internet giants (and I truly mean no disrespect!) will continue their decade-long active support for imposing common carrier obligations on ISPs, while, at the same time, arguing that they should be subject to little or no regulation. And, by the way, that they should continue to receive the special immunities from liability which they are granted by Section 230 of the Communications Act for posting, removing, or flagging content on their platforms.
Recall that the basis for the Internet giants’ (it is just a fact that they are very big!) calls for imposing common carrier public utility-like regulation on the ISPs is the claim that the ISPs possess market power which could allow them to discriminate against those they wish to disfavor.
I wonder whether what are often called “the suits,” or those in the “C-Suites,” have had an opportunity to examine, and think about, Justice Clarence Thomas’s April 5 concurring statement in Biden v. Knight First Amendment Institute at Columbia University. If not, they should. In fact, anyone interested in the current public policy debate concerning the potential regulation of social media should.
Justice Thomas’ opinion was issued in the context of an order dismissing as moot the case in which an appeals court had held that the threads in President Trump’s Twitter account constituted a “public forum,” and, therefore, consistent with the First Amendment, Trump could not block persons from commenting on his tweets. I don’t intend here to undertake an exposition of First Amendment public forum jurisprudence. It is enough for my purposes to point out that the appeals court’s conclusion that President Trump’s Twitter account constituted a public forum was based primarily on the fact that his account was used at times for communications in his official capacity.
While Justice Thomas agreed the original case was moot, his observations, including the following, should provoke careful consideration.
“[T]he Second Circuit’s conclusion that Mr. Trump’s Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as ‘government-controlled spaces.’ … Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason.’ Twitter exercised its authority to do exactly that.”
“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.”
“The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size.”
“It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is. If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.”
And, by way of a punch line, Justice Thomas says this:
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
To be clear, my point here is not to endorse any particular changes in law or policy, although I have refuted elsewhere the suggestion that any change that reduces the scope of the Internet platforms’ immunity from liability under Section 230 necessarily violates their First Amendment rights. And I have suggested that perhaps the most efficacious response to the current dominant market power of Google, Facebook, Amazon, and so forth, is simply the creation of more competition that would create more consumer choice regarding the Internet platforms’ various policies and practices.
Be that as it may, I do wonder.
I wonder whether Big Tech perhaps might be rethinking its heretofore steadfast support for imposing Title II common carrier regulation on ISPs.
Posts
