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Why It Makes No Sense To Call Websites 'Common Carriers'

from the that's-not-what-common-carriage-is-for dept

There’s been an unfortunate movement in the US over the last few years to try to argue that social media should be considered “common carriers.” Mostly this is coming (somewhat ironically) from the Trumpian wing of grifting victims, who are trying to force websites to carry the speech of trolls and extremists claiming, (against all actual evidence) that there’s an “anti-conservative bias” in content moderation on various major websites.

This leads to things like Ohio’s bizarre lawsuit that just outright declares Google a “common carrier” and seems to argue that the company cannot “discriminate” in its search results, even though the entire point of search is to rank (i.e., discriminate) between different potential search results to show you which ones it thinks best answer your query.

There is even some movement among (mostly Republican) lawmakers to pass laws that declare Facebook/Google/Twitter to be “common carriers.” There’s some irony here, in that these very same Republicans spent years demonizing the idea of “common carriers” when the net neutrality debate was happening, and insisting that the entire concept of “common carrier” was socialism. Amusingly (if it weren’t so dumb), Republican-proposed bills declaring social media sites common carriers often explicitly carve out broadband providers from the definitions, as if to prove that this is not about any actual principles, and 100% about using the law to punish companies they think don’t share their ideological beliefs.

Unfortunately, beyond grandstanding politicians, even some academics are starting to suggest that social media should be treated like common carriers. Beyond the fact that this would almost certainly come back to bite conservatives down the line, there’s an even better reason why it makes no sense at all to make social media websites common carriers.

They don’t fit any of the underlying characteristics that made common carrier designations necessary in the first place.

While there were other precursor laws having to do with the requirement to offer service if you were “public callings” the concept of “common carriers” is literally tied up in its name: the “carrier” part is important. Common carriers have been about transporting things from point A to point B. Going back to the first use of the direct concept of a must “carry” rule, there’s the 1701 case in England of Lane v. Cotton, regarding the failure to deliver mail by the postal service. The court ruled that a postal service should be considered a common carrier, and that there was a legitimate claim “[a]gainst a carrier refusing to carry goods when he has convenience, his wagon not being full.”

In the US, the concept of the common carrier comes from the railroads, and the Interstate Commerce Act of 1887, and then to communications services with the Communications Act of 1934, and the establishment of an important bifurcation between information services (not common carriers) and telecommunications services which were common carriers.

As you look over time, you’ll notice a few important common traits in all historical common carriers:

Delivering something (people, cargo, data) from point A to point B
Offering a commoditized service (often involving a natural monopoly provider)

In some ways, point (2) is a function of point (1). The delivery from point A to point B is the key point here. Railroads, telegraphs, telephone systems are all in that simple business — taking people, cargo, data (voice) from point A to point B — and then having no further ongoing relationship with you.

That’s just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.”

Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They’re not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That’s not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train.

Finally, even if you did twist yourself around, and ignore all of that, you’re still ignoring that even with common carriers, they are able to refuse service to those who violate the rules (which is the reason that any social media bans a user — for rule violations). Historically, common carriers can reject carriage for someone who does not pay, but also if the goods are deemed “dangerous” or not properly packed. In other words, even with a common carrier, they are able to deny service to someone who does not follow the terms of service.

So, social media does not meet any of the core components of a common carrier. It is hosting content perpetually, not merely transporting data from one point to another in a transient fashion. It is not a commodity service, but often highly differentiated in a world with many different competitors offering very differentiated services. It is not a natural monopoly, in which the high cost of infrastructure buildout would be inefficient for other entrants in the market. And, finally, even if, somehow, you ignored all of that, declaring a social media site a common carrier wouldn’t change that they are allowed to ban or otherwise moderate users who fail to abide by the terms of service for the site.

So can we just stop talking about how social media websites should be declared common carriers? It’s never made any sense at all.

Filed Under: common carriers, social media, transportation
Companies: facebook, google, twitter, youtube

from the slippery-slope-of-faking-slippery-slopes dept

Well, this isn’t cool. Colorado transportation officials fed bogus information to map apps to make an open road appear to be closed.

Hoping to keep traffic from rerouting to a smaller road after a larger highway was closed due to rockslides, the Colorado Department of Transportation did this:

[T]he Colorado Department of Transportation marked the road as closed on its travelers update site http://www.cotrip.org because of a “safety closure due to mudslide,” and Pitkin County Undersheriff Alex Burchetta said Wednesday afternoon the county sent out an alert about 3:30 p.m. as such, based on that information.

However, there were not any mudslides and the messaging “evolved” and was changed by CDOT, Burchetta said. A CDOT spokesperson confirmed there were no slides.

That affected the DOT’s own site, which is itself problematic. Drivers depend on that information being accurate. Falsifying reports for the purpose of controlling traffic flow shouldn’t be considered acceptable.

But that wasn’t the only travel information outlet affected by the DOT’s shady traffic shaping.

Gregg Miller, a CDOT business process architect, was tasked with contacting the navigation services when agency officials were desperately trying to prevent motorists from flooding Highway 82 during the closure of Interstate 70 through Glenwood Canyon because of mudslides and the ensuing damage.

Traffic levels were hitting an estimated 7,000 to 9,000 vehicles per day during the week of Aug. 1 compared to a normal load of 1,000 vehicles per day, one official estimated.

John Lorme, CDOT director of maintenance and operations, directed Miller via email on Aug. 4 at 11:49 a.m. to get the roads closed on the navigation services.

“I need this to show closed to traffic on the mapping apps, soonest,” Lorme wrote. “I will assume responsibility. All locals understand what’s going on. It’s the (commercial vehicle) and (recreational vehicle) traffic that is creating hazardous conditions.”

CDOT is a “trusted partner” with multiple navigation app providers, allowing it to directly feed traffic information to these companies. But there’s nothing trustworthy about feeding false information to popular consumer apps. It seems if the DOT wanted to close a road or limit its traffic, it had plenty of options that didn’t involve delivering false information to drivers via map apps and the DOT’s own website.

Making this worse was the DOT’s decision to maintain the illusion of a road closure on consumer apps while updating its own site to reflect the actual facts.

Miller was successful in getting Google, Waze, Apple and TomTom to show Highway 82 as closed on Aug. 4. However, CDOT executive director Shoshana Lew insisted that evening that the agency keep Highway 82 marked as open on cotrip.org, the agency’s real-time road status app.

This doesn’t fix the problem. Drivers are more likely to rely on navigation apps than government websites when dealing with travel complications. Efforts like this diminish trust — both of the apps drivers use and the government that’s supposed to be serving them.

Just as worrying was these companies’ agreement to participate in the ruse. Communications obtained with public records requests appear to show Google and Apple knew they were being asked to plant false information in their map offerings.

The next morning, Miller wrote to his supervisor, CDOT chief engineer Stephen Harelson, to express his concerns. Miller said maintenance and operations personnel had directed him to contact Google, Waze and Apple the prior day to ask them to “show Independence Pass closed for traffic routing purposes for the entire month of August.”

“We are currently listed as a ‘trusted partner’ with these services and while they questioned this (request), I explained to them that CDOT is concerned about the traffic levels on the road and they need to be closed,” Miller wrote. “They did it but questioned why COTRIP showed Independence Pass as open.”

Google’s statement appears to indicate it’s willing to plant fake information if asked to do so by government agencies.

“When official changes are made to restrict certain routes, we update our directions accordingly.”

Apparently that includes showing a road is closed when it actually isn’t and listing a nonexistent hazard (mudslide) as the reason for the (fake) closure.

Obviously, nothing can really prevent government officials from straight up lying about road conditions to map app providers. But this fiasco involved not only the planting of false information by government officials, but the active participation of navigation app providers. This is a huge abuse of trust by all parties involved — something that could very well lead to drivers ignoring road closure warnings in the future and putting themselves in danger.

Filed Under: cdot, colorado, fake information, navigation, traffic, traffic routing, transportation
Companies: apple, google, tomtom, waze

Techdirt Podcast Episode 170: Are E-Scooters A Problem?

from the gettin'-around dept

The latest entrant on the decentralized transportation scene is the suddenly-ubiquitous electric scooters that are taking over San Francisco and other cities. Their appearance has triggered the inevitable controversy, with some saying they are ruining cities while others laud their convenience for urbanites. And, of course, a regulatory battle wasn’t far behind. On this week’s episode, we discuss the e-scooter trend and its many pros and cons.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: e-scooters, mobility, podcast, transportation
Companies: bird, lime, spin

DailyDirt: Faster Than A Locomotive…

from the urls-we-dig-up dept

The hyperloop idea that Elon Musk announced to the public is making some baby steps towards becoming a reality. Okay, so no one is talking about how any kind of new train system still needs to get land use rights and political approval, but the technology is inching its way towards becoming more than just an idea on paper.

Hyperloop One (formerly Hyperloop Technologies) has tested an open air demo of its prototype train that could someday travel hundreds of miles per hour in an evacuated tube. It’s not a very impressive demo since high speed trains already exist, but it’s a first step towards much more advanced train systems. [url]
The ‘hyperloop’ concept was popularized by Elon Musk, but similar transport ideas have been tried (and failed) before. The Swissmetro vactrain project fell apart in 2009, and there are no plans to restart it. [url]
Hyperloop Transportation Technologies (not to be confused with Hyperloop One) is working with passive magnetic levitation technology to get its version of a hyperloop working. This levitation technology seems to be related to Inductrack tech that inspired the Hendo hoverboards. [url]
The US Air Force set a maglev speed record at 633mph using superconducting magnets and liquid helium to cool it all down. Faster test sleds propelled by rockets didn’t use magnetic levitation, but this is still cool, right? [url]