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.