No, Facebook and Google are not public utilities

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Do you need Google treated like your local phone company? The idea is that dominant, face-to-face internet platforms should be regulated as conventional carriers or utilities hitting around some time. But that new one shook in April, when Supreme Court Justice Clarence Thomas issued an opinion suggesting that a joint carriage law could allow Congress to regulate social media providers. Ohio Attorney General Dave Yost filed a lawsuit in June asking the state court to rule that “Google’s Internet search is properly classified as a regular operator and / or public service under Ohio law.” Last weekend Yost announced op-ed u New York Times outlining a strategy as a way to stop Google from favoring its own business over competitors who rely on it to reach customers. “As legal progress progresses, it is much easier than what an antitrust law would require,” he wrote.

Unfortunately, there is little logic.

“This guy made such a mess,” said Barbara Cherry, a professor at Indiana University Media School who studies common carriage and utility laws. “It’s especially sloppy for a lawyer.”

The first red flag in the Ohio lawsuit is that it doesn’t even try to define what a regular carrier or utility is. Another red flag is that Yost suggests that the two concepts are interchangeable. Everything he asks for, he wrote in Times op-ed, “is a simple statement that Google is, by law, a public utility or, in general, a joint operator.” In fact, conventional transport is not a more general type of public service.

“There’s a lot of misunderstanding about what conventional transportation is, what utilities are,” said Cherry, who practiced telecommunications law before moving into academia. “They are completely separate bodies of law, and why the entity would achieve legal status in any of them is for different reasons. It happens by chance that some entities can be both common carriers and utilities, but the reason is that they satisfy both. ”

The concept of a public utility company, Cherry explained, refers to a company that has signed an agreement with some level of government to provide services to the general public. In return, he usually receives some benefit or delegation of power from the state. Imagine an electric company that can rely on an eminent domain, but is subject to price control.

“Public utility comes from a contractual relationship between the government and that entity that should be public utility,” Cherry said. But Google, let me say very obviously, does not have a contract with the government to provide search engines.

Okay, but what about calling Google the usual carrier? And here Cherry said Yost misinterprets the law. Ordinary transportation, she explained, is a legal concept that goes all the way back to the feudal economy of medieval England. The usual carrier was someone who offered to carry something to any member of the public. Anyone who chose a job in this way was subject to certain legal duties, including non-discrimination.

Originally, “carriage” meant literally – for example, ferry operators. Today, that can include more metaphorical wearing, as with telephone companies. The key overlap is neutrality. “Conventional carriers, by definition, they’re just a channel,” Cherry explained. “They don’t control the content.” That was basically the principle net neutrality a rule issued by the Federal Communications Commission in 2015 (and repealed under the Trump administration), which imposed a common operator status on Internet service providers such as Comcast and AT&T. Since ISPs are only data channels, it makes sense to prevent them from treating data differently, depending on their source or content.



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