The view in Washington appears to be that social media has become so important that it must come under government control. That this is a non sequitur seems lost on many.
For example, some members of the House and Senate have mistakenly pressured Big Tech to steepen the political tilt of its content moderation. The politicians apparently see themselves as protectors of truth, but in reality they know truth no better than anyone else. And the restrictions they seek would damage America’s political, cultural, and economic futures by diminishing people’s exposures to novel ideas and squashing innovations that challenge the status quo.
One pushback to this control of online speech is a movement to shoehorn social media companies into a common-carrier mold. The most prominent example of this effort is Sen. Bill Hagerty's (R-TN) proposed 21st Century FREE Speech Act, which seeks to regulate social media platforms of more than 100 million users as common carriers. This perspective has gained supporters (see here, here, here, and here) and critics (see here, here, and here).
The push to create social media common carriers is misguided — namely because it tries to impose an untested business model. The common-carrier concept evolved in common law during medieval times, when transportation businesses sometimes proved unfaithful in their promises to customers. Over time, courts imposed nondiscrimination requirements when carriers victimized customers that had little or no choice of suppliers. Lawmakers in the US enshrined common-carrier rules into law for railroad, trucking, telegraph, and telephone companies, whose business models already fit the common-carrier mold.
Social media companies do not have common-carrier business models. Reddit, TikTok, Facebook, and WeChat are more like meeting places than carriers and differ in their promises and cultures they promote. Hagerty’s bill would subject these differences to Federal Communications Commission (FCC) oversight, which could lead to political pressures on content, constraints on sites' abilities to manage their cultures, and less innovation.
And despite claims by numerous antitrust authorities, users of these sites have an abundance of choices. Sen. Hagerty’s bill limits regulation to social media sites with more than 100 million users worldwide. According to Statista, at least 16 social media providers have 300 million or more users. (There are probably many more providers with fewer than 300 million but more than 100 million users.) Monitoring 16-plus providers would be quite a chore for the FCC, and the large number makes it hard to argue that users have a dearth of choices.
Rather than create and then impose a social media common-carrier model on existing companies, lawmakers could consider creating a legal framework with well-considered rights, privileges, and obligations in which companies can create valuable common-carrier-like (CCL) services if they so choose. This would enable CCL business models and allow social media services that do not fit this mold to operate under other rules.
For example, Hagerty’s bill would revoke Section 230 protections for all social media companies and replace them with other provisions. Perhaps a CCL framework would include expanded service provider protections specific to services that opt into the framework, in part compensating providers for having less control over content. Providers that have both CCL and non-CCL services could facilitate multihoming — where consumers use more than one social media platform — by having the CCL and non-CCL share content, perhaps like Facebook does for both its core Facebook service and Instagram. This might make it easy for users to get the best of both worlds.
The bottom line is that a CCL framework should be an option, not an artificially imposed business model. Indeed, some social media platforms are already experimenting with business models that have minimal content controls. Companies should be allowed to choose their business models, and customers should be allowed to choose the businesses they prefer.
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Original Author: Mark Jamison
Original Location: Social media companies shouldn’t be pressed into a common-carrier mold