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19 Sep 2022
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 lower level point to point data transport from the ISP, and make the former common carriage. Most countries in Europe do that, and it works well, with lots of 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:
Facebook, Google, Twitter, and everything else on the web fail 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.
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