Should Google get treated like your local telephone company? The idea that dominant, front-facing internet platforms should be regulated as common carriers or public utilities has been kicking around for a while. But it got a fresh jolt in April, when Supreme Court justice Clarence Thomas issued an opinion suggesting that common-carriage law could allow Congress to regulate social media providers. Ohio attorney general Dave Yost filed a lawsuit in June asking a state court to rule that “Google’s provision of internet search is properly classified as a common carrier and/or public utility under Ohio common law.” Last weekend, Yost published an op-ed in The New York Times touting the strategy as a way to stop Google from favoring its own business over competitors who rely on it to reach customers. “As legal touches go, it’s a lot lighter than what antitrust law would demand,” he wrote.
Unfortunately, it’s also a bit light on logic.
“This guy has made such a mess,” said Barbara Cherry, a professor of at the Indiana University Media School who studies common carriage and public utility law. “For a lawyer, it’s particularly sloppy.”
The first red flag in the Ohio lawsuit is that it doesn’t even try to define what a common carrier or public utility is. The second red flag is that Yost suggests that the two concepts are interchangeable. All he’s seeking, he wrote in the Times op-ed, is “a simple declaration that, under the law, Google is a public utility, or more generally, a common carrier.” In fact, common carriage is not a more general species of public utility.
“There’s a lot of misunderstanding of what common carriage is, what public utility is,” said Cherry, who practiced telecommunications law before going into academia. “They’re totally separate bodies of law, and why an entity would achieve a legal status under either one is for different reasons. It just so happens that some entities can be both common carriers and public utilities, but the reason is because they satisfy both.”
The concept of a public utility, Cherry explained, refers to a business that has signed an agreement with some level of government to provide a service to the public at large. In exchange, it typically receives some benefit or delegation of power from the state. Think of an electric company that has the power to invoke eminent domain but is subject to price controls.
“Public utility comes from a contractual relationship between the government and that entity that is supposed to be the public utility,” Cherry said. But Google, to state the very obvious, has no contract with the government to provide a search engine.
OK, but what about calling Google a common carrier? Here, too, Cherry said that Yost is misinterpreting the law. Common carriage, she explained, is a legal concept that dates all the way back to the feudal economy of medieval England. A common carrier was someone who offered to carry something to any member of the public. Anyone who chose to do business that way was subject to certain legal duties, including nondiscrimination.
Originally “carriage” was meant literally—ferry operators, for instance. Today, it can encompass more metaphorical carrying, as with phone companies. The key overlap is neutrality. “Common carriers, by definition, they’re just a conduit,” explained Cherry. “They’re not controlling the content.” That was the principle underlying the net neutrality rule issued by the Federal Communication Commission in 2015 (and rescinded under the Trump administration), which imposed common carrier status on internet service providers like Comcast and AT&T. Because ISPs are mere conduits for data, it makes sense to prevent them from treating data differently depending on its source or content.
Here is where the application of the concept to Google search starts to break down. According to Yost’s lawsuit, Google’s customers aren’t users, who get the product for free; rather, its customers are the businesses who pay to advertise on it and rely on its search algorithm to reach consumers. The problem is that Google does not promise to act as a neutral conduit for those businesses. Quite the contrary. The whole value proposition for Google is that it discriminates between different possible results in order to return what it thinks will be most relevant to the person doing the search. To ask the court to force Google “to carry search result information reliably, neutrally,” as the Ohio lawsuit does, is sort of nonsensical.
“If you’re being nondiscriminatory in an absolute sense, so there’s no prioritization, there’s no special insight—it just goes back to how many times the words appear on a web page, like the early search engines—that’s not what Google offers you,” said Scott Jordan, a professor of electrical engineering and computer science at UC Irvine and former chief technologist at the Federal Communications Commission. A search engine that didn’t try to bring the best, most relevant results to the top would be basically worthless. “If you mean nondiscriminatory in a much narrower sense, like does Google’s algorithm include whether the webpage has a conservative or a liberal tint, or is based on anything else—gender, race, what have you—then, yeah, Google might say that they’re nondiscriminatory in these narrower senses. But this doesn’t easily map onto the question of common carriage.”
This doesn’t mean that the objectives of Yost’s lawsuit are totally illegitimate. His main objection to how Google operates is a familiar one: the suit criticizes the company for favoring its own products and services above competitors’, with the result that an ever-growing share of Google searches end without clicking away to another website. But antitrust law already provides ways to punish self-dealing. Indeed, one of the multiple lawsuits filed against the company specifically takes aim at how it allegedly discriminates against specialized search engines like Kayak and Yelp. (In Yost’s defense, he is one of the more than 30 state attorneys general who joined that suit.) And one of the bills recently introduced by the House antitrust subcommittee would prohibit dominant companies from favoring themselves over other companies that use their platforms.
Now, there’s a difference between asking a judge to declare that Google is already a common carrier, as the Ohio lawsuit does, and asking Congress to pass a new law forcing Google to be a common carrier. It’s that second idea that Clarence Thomas seemed to have in mind in his April opinion, in a case that concerned Twitter, not Google. “The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms,” he wrote, suggesting that government could pass laws limiting the ability of a social media platform to kick off users (cough, Donald Trump, cough).
According to Thomas, the common carrier principle could help Congress get around the First Amendment problem that arises when you force a private actor, like Twitter or Facebook, to carry speech that they don’t want to carry. But even apart from constitutional questions, the notion of imposing common carriage status on social media platforms raises the same logistical problems as it would with Google’s search engine.
“These are the places where I’ve heard it raised the most, and these are the places where it makes the least sense,” said Jon Peha, a professor of engineering and public policy at Carnegie Mellon and another former chief technologist at the FCC. “Part of the core function of Facebook is ranking information that is deemed to be important to the user. Discrimination is what it does. When I hear some politicians complaining about not allowing discrimination in ranking algorithms, when that is what the ranking algorithms do at their core, I get very confused.”
To judge by the Ohio lawsuit, some of the people complaining are confused, too.
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