Should Social Media Be Regulated as Common Carriers?
Major social media, notably Twitter and Facebook, are gradually moving to censor what is communicated on them. In Twitter’s case, the primary stated rationale is to “protect its users from abuse and harassment.” It has also taken upon itself to “[identify] and [collapse] potentially abusive and low-quality replies so the most relevant conversations are brought forward.” There are widespread reports that Twitter engages in “shadowbanning”, i.e., hiding the Tweets of those users it identifies as objectionable, and making these Tweets inaccessible in searches.
Further, there are suspicions that there is a political and ideological component to the filters that Twitter applies, with conservative (and especially alt-right) content and users being more likely to fall afoul of these restrictions: the relentlessly leftist tilt of CEO Jack Dorsey (and most of its employees) gives considerable credence to these suspicions.
For its part, Facebook is pursuing ways to constrain users from posting what it deems as “misinformation” (aka “fake news”). This includes various measures such as cooperating with “third party fact-checking organizations“. Given the clear leftist tilt of Mark Zuckerberg and Facebook’s workforce, and the almost laughably leftist slant of the “fact-checkers”, there is also considerable reason for concern that the restrictions will not be imposed in a politically neutral way.
The off-the-top classical liberal/libertarian response to this is likely to be “well, this is unfortunate, but these are private corporations, and they can do what they want with their property.” But however superficially plausible this position appears to be, in fact there is a principled classical liberal/libertarian response that arrives at a very different conclusion. In particular, as arch-libertarian Richard Epstein (who styles himself as The Libertarian in his Hoover Institute podcast) has consistently pointed out, even during the heyday of small government, classical liberal government and law, the common law recognized that restrictions on the autonomy of certain entities was not only justifiable, but desirable. In particular, natural monopolies and near-monopolies were deemed to be “common carriers” upon whom the law imposed a duty of providing access on a non-discriminatory basis. The (classically liberal) common law of that era recognized that such entities could exercise market power, or engage in discriminatory conduct without fear of competitive check. Thus, the obligation to serve all on a non-discriminatory basis in order to constrain the exercise of market power, or invidious discrimination based on the preferences of the owner of the common carrier.
Major social media (and Google as well–perhaps most of all) clearly have market power, and the ability to discriminate without fear of losing business to competitors. The network nature of social media (and search engines) leads to the dominance of a small number of platforms, or even one platform. Yes, there are competitors to Facebook, Twitter, and Google, but these companies are clearly dominant in their spaces, and network effects make them largely immune to competitive entry. Imposition of a common carrier-inspired obligation to provide non-discriminatory access is therefore quite reasonable, and has a substantial economic and legal foundation. Thus, libertarians and classical liberals and conservatives and even fringe voices should not resign themselves to being second or third class citizens on social media, merely because these are private entities, rather than government ones. (Indeed, the analogy should go the other direction. A major reason for limiting the ability of the government to control speech is because of its monopoly of legal violence. It is monopoly power, regardless of whether in a market or political setting, that needs to be constrained through things like rights to free speech, or non-discriminatory access to common carriers.)
Further, insofar as leftists (including the managements of the major social media companies) are concerned, it is utterly incoherent for them to assert that as private entities they are perfectly free to restrict access according to their whims, given that leftists also adamantly (indeed, obnoxiously) insist that anti-discrimination laws should be imposed on small entities operating in highly competitive environments. Specifically, leftists believe that bakers or caterers or pizzarias with zero market power should be required to serve all, even if they have religious (or other) objections to doing so. But a baker refusing to sell a wedding cake to a gay couple does not meaningfully deprive said couple of the opportunity to get a cake: there are many other bakeries, and given the trivial costs of entry even if most incumbent bakers don’t want to serve gays, this only provides a commercial opportunity for entrant bakers to cater to the excluded clientele. Thus, discrimination by Baker A does not impose large costs on those s/he would prefer not to serve (even though forcing A to serve them might impose high costs on A, due to his/her sincere religious beliefs).
The same cannot be said of Twitter or Facebook. Given the nature of networks, social and otherwise, entrants or existing competitors are very poor substitutes for the dominant firms, which gives them the power to exclude, and which makes their exercise of this power extremely costly to the excluded. In other words, if one believes that firms in highly competitive markets should be obligated to provide service/access to all on a non-discriminatory basis, one must concede that the Twitters, Facebooks, and Googles of the world should be similarly obligated, and that given their market power their conduct should be subject to a substantially higher degree of scrutiny than a small firm in a competitive market.
Of course, it is one thing to impose de jure an obligation on Twitter et al to provide equal access and equal treatment to all, regardless of political beliefs, and quite another to enforce it de facto. Of course Jack and Mark or Sergey don’t say “we discriminate against those holding contrary political opinions.” No, they couch their actions in terms of “protecting against abusive behavior and hate speech” or “stamping out disinformation.” But they retain the discretion to interpret what is abusive, hateful, and false–and it is clear that they consider much mainstream non-leftist belief as beyond the pale. Hence, enforcement of an open non-discriminatory access obligation would be difficult, and would inevitably involve estimation of discriminatory outcomes using statistical measures, a fraught exercise (as employment discrimination law demonstrates). Given the very deep pockets that these firms have, moreover, prevailing in a legal battle would be very difficult.
But this is a practical obstacle to treating social media like common carriers with a duty to provide non-discriminatory access. It is not a reason for classical liberals and libertarians to concede to dominant social network operators that they have an unrestricted right to restrict access as a matter of principle. In fact, the classical liberal/libertarian principle cuts quite the other way. And at the very least, imposing a common carrier-like obligation would substantially raise the cost that social network operators would pay to indulge in discrimination based on politics, beliefs, or ideology, and this could go a long way to make these places safe for the expression of political opinions that drive Jack, Mark, et al, nuts.
Not being a user of social media, but isn’t there another company that would be more
sympathetic to his cause, that President Trump could use rather than Twitter to get his message out.
Comment by Peter — February 25, 2017 @ 8:40 pm
That’s a beautiful vision, fully consonant with the classical liberal position. The administration would establish an agency that would make sure that Facebook and Twitter are providing equal opportunities to supporters of the administration to express their opinions. Maybe even call it USKomNadzor.
Comment by aaa — February 25, 2017 @ 9:28 pm
I really can’t stand the superficial kind of analysis where someone’s like, well Facebook owns their service, it’s within their rights to restrict things as they choose.
Most of the time people aren’t talking about whether the government should prevent Facebook from doing this. Rather, the most interesting question is whether Facebook SHOULD do it or not.
Comment by John Hall — February 25, 2017 @ 9:31 pm
On reflection I imagine this is precisely what happens in China, except there it is government controlling what you read.
Comment by Peter — February 25, 2017 @ 11:55 pm
And who will regulate the regulators? I believe the problem is intractable for regulation. Instead, today’s social media must be eliminated and replaced by a decentralized system, similar to email, interacting through common protocols, not common platform. Common carriers are all that is needed. Facebook should have an expiration date.
Comment by Ivan — February 26, 2017 @ 2:17 am
If the history of FOSS movement is any indicator, such a development is inevitable.
Comment by Ivan — February 26, 2017 @ 2:19 am
The problem isn’t made any better by other dominant players colluding to prevent competition either: witness Apple dragging their feet over allowing Gab to have an app.
Comment by Tim Newman — February 26, 2017 @ 3:02 am
It is not necessary to have a central regulator making these judgments. I specifically mentioned the common law approach to common carriers. Under the common law, someone discriminated against by Twitter or Facebook would have cause to sue. Indeed (and here’s where the big risk to these companies would lie) it is possible that these companies could be subject to class action lawsuits.
When Putin shut down his first TV station (NTV), it was done long before he established government agencies to regulate the media. He let Gazprom do it. Just don’t play with freedom of speech–the unintended consequences of this are far reaching.
Comment by aaa — February 26, 2017 @ 6:20 pm
@aaa-Um, do you have a clue? I am proposing giving legal recourse to those whose speech is being abridged.
And your analogy is beyond retarded. Comparing the federal courts to Gazprom is beyond moronic.
Eh. Actually going in and proving discrimination by FB et al to certain viewpoints is going to be neigh impossible — FB will obstrucate and deny in court and it will be exceptionally difficult to fight. The data are too vast to meaningfully analyze by an outsider. (You’re a conservative and blocked? Oh that’s because of algorithm that takes 10 billion data points in to determine who’s a troll. Sorry, just an algorithm, could happen to anyone, it most definitely doesn’t tend to block conservative comments at all. Nope. Prove it – here’s 50 billion datum and no way of deciphering them, because privacy, but feel free to make your case.)
Given that the courts won’t be much help, that leaves regulators. Are regulators more or less liberal than FB staff? Hard to say — and at the least FB staff have some incentive to ensure conservatives remain signed up.
Comment by FTR — February 26, 2017 @ 9:05 pm
Words like moronic and retarded coming from someone proposing government censorship of social media.
Comment by aaa — February 27, 2017 @ 12:14 am
“Just don’t play with freedom of speech–the unintended consequences of this are far reaching.”
Agreed: the creation (let alone enforcement) of any kind of “thought crime” is always wrong.
This is why your support for the position of FB et al. – politically-motivated censorship, conducted in secret – makes no sense.
Comment by Fen tiger — February 27, 2017 @ 4:42 am
DOJ needs to investigate Twitter and Facebooks for limiting free speech! Liberals preach fee speech until that speech goes against their dogma, then they shut it down.
Comment by Kevin Mills — February 27, 2017 @ 3:56 pm
Doesn’t this assume that discrimination over political belief is something protected against in the Constitution? Race and religion are protected classes, but famously not class itself nor “conservative” or “liberal.” Now granted I’m no Constitutional scholar, but correct me if I’m wrong.
Comment by Dain — February 27, 2017 @ 5:10 pm
I tried to get at some of the business strategy questions for companies like this, back in 2007 when their dominance seemed less locked in:
https://organizationsandmarkets.com/2007/03/19/utility-strategy/
Comment by srp — March 2, 2017 @ 8:43 pm
BTW, the legal antidote to discrimination by these guys is to force them to make a choice between common carrier and editor status. Change the law so that you have to be one or the other, and then those opting against CC status will be liable for everything posted or linked, etc. on their platforms.
Comment by srp — March 2, 2017 @ 8:45 pm
@aaa – So, “government censorship” now also describes attempts to protect against censorship? That’s pretty Orwellian use of language you have there. I’m not sure if you think you’re being clever or just throwing crap to see what sticks.
@Ivan – Facebook is still growing, and F/OSS is co-opted and used by none other than Facebook (and pretty much every other proprietary platform) to do so. SMTP and its predecessors were created at a time when it was neither feasible nor desirable to host every communication centrally (i.e., at a single entity). That is no longer the case. While it’s not a difficult matter to design a set of protocols that would allow decentralized social networks to exist and operate, how do you propose to make it in Facebook’s (or Twitter’s) interest to go along with them? And if you can’t make them, how do you propose to get even some significant proportion of their user base to jump ship so as to make the social network useful for its users? Network effects get in your way.
@John Hall – We’re talking about the government here, at least vial its judicial branch. (Whether Facebook should or not censor may be an interesting question but provides no liberty protection against infringement of free speech. There are many people who are perfectly happy to censor the opinions of others as long as they themselves may speak freely.)
I do believe there some liberty value to the ISP middle ground between full blown CC and a private publisher. However, I also believe that monopolies can infringe on our liberties just as well as any government, and our legal regimes should not pretend that they are just any other private person/business.
Comment by Sha — March 5, 2017 @ 2:14 pm
An argument I’ve long agreed with… In fact, I’ve secretly hoped for crushing enforcement for some time.
I think there is a very clear case given how Facebook in particular controls digital content discovery today – i.e. the literal conversation. The data here is staggering (likely now a majority of ‘news’ content comes on a referral basis from FB friends) and the economic impact is obvious – look at how (failing) NYT had to make big strategic concessions over reposting of their content on FB. Twitter as largely a one-dimensional platform for self promoters, in contrast, doesn’t quite have the same potentially distorting social impact as FB, even as it has been more transparently Stalinist in its tactics. Google is probably somewhere in between, and is likely somewhat chastened as it has already faced some enforcement actions over its monopoly power in other domains (i.e. EU on preferential display of Zagat ratings).
In addition to the compelling arguments you’ve laid out, I think there is further cause given the perverse incentives FB et al have as de facto regulators to what amounts to our 21st century town square. These companies openly tout their ability to screen and filter people to advertisers, and have a tact interest in maintaining a “civil” tone; social media is already objectively depressing and wears on people’s souls, and FB is likely uncomfortably aware that hostile and hysterical political discourse is very bad for business indeed. Effectively they resemble the position of the Communist Party of China; some amount of dissent is tolerable and necessary to legitimize rule, but too much risks collapsing social and economic order and sending the mobs into the streets. Like the CCP, the management has extremely sophisticated tools to monitor and quash potential trouble before it reaches a scale where it becomes publicly noticeable. It’s revealing that FB’s crackdown on “fake news” has come at a time when they have been reportedly desperately attempting to bend the knee to please Chinese censors (who, unsurprisingly, have no desire to cede control over their own social platforms, recognizing the obvious monopoly logic that you do here).
I’ve always felt that if Trump DOJ follows the Obama mould, a consent decree for social media is only a matter of time. The Apple E-book “price fixing” logic was junk legal science typical of the Obama regime, but one need only witness the unholy hell that external monitor Michael Bromwich was able to inflict to recognize a very clear template that could be applied to social media monopolists. There is no need to search for elegant legal means, or ingenious legislative solutions. The long arm of the Fed is already more than capable of smacking around a bunch of Silicon Valley autistes, having done it already to, oddly enough, what is likely the most humanistic of the tech monopolists. It will be an interesting reveal on the character of the Trump DOJ to see what happens to the Tech Fat Cats.
I can’t find it now, but I remember reading after the election that users who deactivated their account were prompted with a simple yes/no survey asking if they felt positively or negatively about Election 2016. If true, it would validate the impulse that these businesses are concerned about the impact on their platforms from escalating political feuds.
As much as I instinctively loathe legally aggressive government enforcement actions against private businesses, I would not shed any tears for Zuck, Dorsey et al were they to be forced into humiliating concessions regulating their ability to censor political speech, especially on a tacit basis. Everyone acknowledges most people willingly dive into the echo chamber anyways, so if it were just a matter of users being able to transparently choose to switch off The Other Side, censorship per se wouldn’t necessarily be any more problematic than the media universe we’ve had for some time now. However, the opaque way these companies have chosen to deal with the problem, paired with their appeals to some sort of supposedly transparent, even-handed mechanism for enforcement, belies the dystopian, Orwellian mission at hand. It’s just moral window dressing to justify what FB rationally perceives to be the lowest cost intervention to preserve stability and enforce their preferred worldview; I think its very telling that reportedly most of the pressure from within FB to ratchet up censorship of “hate speech” etc has come internally, and from below. I give Zuck at least some credit for not kowtowing to the most delusional Robespierrian millennial hotshots he has on his team.
As an added bonus, a consent decree would be the final nail in Twitter’s steel coffin, likely ending in a big ol’ take under with the entire management team getting canned (again). The Valley openly likes to tout how its monopolistic centralization of the economy is breaking capitalism and advocates for UBI “bread and in-app purchases” to keep the proles happy while the Tech Fat Cats live in a perpetual heaven on Earth. These types literally see Marxist Utopia in sight, openly express a belief that they may be the first people to live forever, and believe themselves our rightful masters for perpetuity. It would be only the latest in a series of joyous comeuppances inflicted by our first Reality TV President.
Comment by Blaise Bardamu — March 6, 2017 @ 10:33 pm