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Why Facebook Is Not a Common Carrier

The ever-entertaining Fifth Circuit has recently upheld a strange Texas law that forbids most kinds of social media moderation. (Techdirt explains many of the reasons the court is wrong, so I won’t try.)

This brings us to the trendy question of whether Facebook, Twitter, et al. should be treated as common carriers.

You can make a good argument to separate the point-to-point data transport from the ISP and make the former common carriage. Most European countries do that, and it works well, with many competing ISPs sharing the common carriage wires that run into everyone’s house.

If I squint, I can sort of see making ISP packet transport common carriage, what many people mean by network neutrality. There you run into issues of what is reasonable network management against overloads and abuse and what is disfavoring people who aren’t your friends. (Zero rating some services on mobile has that problem.) It also runs into the issue that most ISPs do more than transport packets. If they provide DNS and mail service, how is that regulated since I don’t think anyone would want to use a mail system that can’t reject spam its users don’t want, even if the spam is not illegal.

But treating anything higher in the network stack than that as common carriage just shows that people don’t understand what common carriage means.

I believe every actual instance of common carriage has these two features:

  • It sends physical things or messages from one point to another point, or at most one point to a specific set of points like a multi-drop leased telephone line.
  • The people who use it pay for it in proportion to how much stuff they send between those points.

Facebook, Google, Twitter, and everything else on the web fails both of those tests. The idea that some online service should be required to distribute stuff for free, much less that they distribute stuff they dislike, is crazy.

By John Levine, Author, Consultant & Speaker

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Co-designer of the TCP/IP Protocols & the Architecture of the Internet

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