Should Google Get treated like your local phone company? The idea that the dominant and front-end internet platforms should be regulated as public carriers or public services has been hack about for a certain time. But it got a new jolt in April, when Supreme Court Justice Clarence Thomas issued an opinion suggesting that the transit 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 internet search supply is properly classified as a common carrier and / or a service public under Ohio common law ”. Last weekend, Yost posted a editorial in The New York Times touting the strategy as a way to prevent Google from favoring its own business over its competitors who rely on it to reach customers. “As the legal contacts wane, it’s much lighter than what the antitrust law would require,” he wrote.
Unfortunately, it’s also a bit light on logic.
“This guy made such a mess,” said Barbara Cherry, a professor at Indiana University Media School who studies public transportation and utilities 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 a utility is. The second red flag is that Yost suggests that the two concepts are interchangeable. Whatever he’s looking for, he writes in the Time op-ed, is “a mere statement that, by law, Google is a public utility, or more generally, a common carrier”. In fact, the common car is not a more general kind of public utility.
“There is a lot of misunderstanding about what public transport is, what the public utility is,” said Cherry, who practiced telecommunications law before entering academia. “These are totally separate bodies of law, and why an entity would gain legal status under one or the other is for different reasons. It turns out that some entities can be both common carriers and utilities, but the reason is that they satisfy both.
The concept of public service, Cherry explained, refers to a company that has signed an agreement with a certain level of government to provide a service to the general public. In return, he usually receives a benefit or delegation of power from the state. Think of a power company that has the power to invoke a prominent area but is subject to price controls.
“Public service comes from a contractual relationship between the government and this entity which is supposed to be the public service,” Cherry said. But Google, to state the obvious, has no contract with the government to provide a search engine.
Okay, but what about calling Google a public operator? Here, too, Cherry said Yost misinterprets the law. The common car, she explained, is a legal concept that dates back to the feudal economy of medieval England. A common carrier was someone who offered to transport something to any member of the public. Anyone who chose to do business this way was subject to certain legal obligations, including non-discrimination.
Originally, the term “cart” literally meant – ferry operators, for example. Today that can encompass more metaphorical transportation, as with telephone companies. The key overlap is neutrality. “Common carriers, by definition, are just a conduit,” Cherry explained. “They don’t control the content.” This was the principle underlying the net neutrality rule issued by the Federal Communication Commission in 2015 (and repealed under the Trump administration), which imposed common carrier status on Internet service providers like Comcast and AT&T. Since ISPs are just simple data conduits, it makes sense to prevent them from treating data differently depending on its source or content.