Speta on Common Carrier Principles & Internet Platforms

James B. Speta (Northwestern University - Pritzker School of Law) has posted Can Common Carrier Principles Control Internet Platform Dominance? on SSRN.  Here is the abstract:

In this lecture, the 2022 Robert F. Boden lecture at Marquette University Law School, I address both the dominance of internet platforms—Google, Facebook, Twitter, Amazon, Apple, and others—and the calls to regulate them as common carriers. The main concern is that these platforms are biased, that they discriminate, that they foreclose speech. That is why, today, platform critics—including governments—are reaching for the traditional law of railroads and of telephone companies: the law of common carriage. That once-dominant law forbade discrimination. This topic is made even more timely by the Fifth Circuit’s recent NetChoice decision, upholding a Texas state law imposing such regulation, and explicitly disagreeing with an Eleventh Circuit decision finding a similar Florida law unconstitutional. One Supreme Court Justice has also written in favor of platform-focused common carrier regulation, as have numerous federal and state lawmakers, some academics, and many commentators.

I think the proposals for regulating platforms are wrong to target common carrier solutions at the platforms’ core operations themselves—to change the ways in which users are permitted access, content is moderated, and search results are provided. Such platform regulation does not fit the common carrier model. Platforms are not merely conduits of user behavior, although they are partly that. Platforms also seek to create a particular kind of content experience—a speech experience—that holds the attention of their users. Common carrier rules have never applied to the content curators: newspapers, broadcasters, and bookstores. Even more concerning, laws directly controlling platforms simply give the government unprecedented power over the content experiences these private companies seek to create.

Instead, we can and should at least try to address concerns about the currently dominant platforms by using law to make it easier to have more platforms. Common carrier solutions should be targeted at the infrastructure that enables platforms to be built and to reach consumers—the devices, ISPs, hosts, cyberdefense, and other support services. In the past, these providers have denied services to some new platforms that sought to establish alternative services. Applying a lighter-touch (and differently placed) version of common carrier regulation to the internet’s support providers can increase the possibility of alternative platforms. This is our best hope to enrich our speech choices and ecosystem without government censorship.