When we think of enterprises categorized as common carriers, we tend to think of those that transport–that “carry” passengers or goods for a fee, and that serve the general public. But the term applies to services other than transportation.
Pointing out that the Internet is a common carrier is critical to discussions of net neutrality, as Tom Wheeler–a former head of the FCC–has written in an article for the Brookings Institution.
As far back as England’s emergence from feudalism around 1500, there has been a common law concept that essential services have a “duty to deal.” The operator of the ferry across the river, for instance, could not favor one lord’s traffic over another’s; everyone had access, and everyone had to pay. When the telegraph was introduced in the United States 350 years later, the concept was applied to that new essential service. The Pacific Telegraph Act of 1860 provided, “messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception.” When the telephone came along, the same concept was applied to it as a common carrier.
The Communications Act of 1934, under which the FCC operates today, established in Title II’s statutory language, “It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor.” The Communications Act also established the concept that the actions of Title II carriers must be “just and reasonable.”
Wheeler says that today’s Internet Service Providers, or ISPs, want to be allowed to make their own rules– without any review as to whether those rules or their actions are “just and reasonable.”
The ongoing debate about net neutrality is usually focused on specific behaviors by ISPs–behaviors that privilege the delivery of messages that are financially beneficial to them, while slowing or even blocking those that aren’t.
As Wheeler reminds us, the term “net neutrality”– coined in 2003 by Columbia professor Tim Wu–should be understood as more expansive.
It was an innovative nomenclature that picked up on the ability of the ISPs to discriminate for their own economic advantage. Net neutrality became commonly described as whether the companies could create “fast lanes” and “slow lanes” for internet traffic. That such a problem was not hypothetical was demonstrated five years later when the Republican FCC fined Comcast for slowing the delivery of video content that could compete with cable channels.
But as Wheeler argues, limiting the conversation to blocking, throttling, and paid prioritization is misleading. The real issue pending before the FCC is “whether those that run the most powerful and pervasive platform in the history of the planet will be accountable for behaving in a “just and reasonable” manner.”
It is the conduct of the ISPs that is in question here. Because telephone companies were Title II common carriers, their behavior had to be just and reasonable. Those companies prospered under such responsibilities; as they have morphed into wired and wireless ISPs, there is no reasonable argument why they, as well as their new competitors from the cable companies, should not continue to have public interest obligations.
Don’t be misled by the all-too-convenient framing that net neutrality is all about blocking and throttling. The real issue is why such an important pathway on which so many Americans rely should be without a public interest requirement and appropriate oversight.
The public interest and the common good are two concepts that have lost considerable ground over the past few decades–and nowhere is the absence of those considerations more harmful than in the Wild West that is the current Internet. We can trace a majority of the political and social problems we face to the fragmented and un-policed nature of the global information environment we inhabit. It’s ironic–and incredibly worrisome– that a platform invented to facilitate communication has morphed into a primary source of misinformation, conspiracy theories and algorithmic sorting.
The Communications Act of 1934–still in effect–established the duty of “every common carrier engaged in interstate or foreign communication by wire or radio” to serve all comers “upon reasonable request.” The Act also established the rule cited by Wheeler, obliging such common carriers to act in ways that are “just and reasonable.”
According to Wheeler, the ISPs want to continue to make their own rules without any review as to whether their actions pass the “just and reasonable” test.
Given the disproportionate impact on society of social media and internet platforms, imposing some oversight would seem to be “just and reasonable.”
My guess is that “just and reasonable” are in the eye of the beholder… thus much parsing to be done by the courts.
The Internet and the media are aiding and abetting Donald Trump as the primary carrier of hatred, racism, bigotry, violence and blatant lies as freedom of speech. That he believes his view is “just and reasonable” and his life style and view of dictatorship as the answer to replacing his view of a failing government. The very government we and the world at large watched him destroy trust and faith in our nation as our highest courts slow to a crawl, any efforts to end his spread of hatred, racism, bigotry, violence, blatant lies and seeking the position of Dictator of this nation.
He has replaced Typhoid Mary with Covid Donald as the Common Carrier of disease in our history.
It’s the algorithmic sorting that concerns me personally. I want as much information available that I can access, yet I seem to be fed the same content time and again. I’m sure everyone’s experiences are the same, and I feel it is absolutely a recipe for disaster.
We have the following services entering and leaving our house: water, air, energy, and information. We pay for all of them except air and the energy provided directly by the sun and returned into space. Because we were fortunate to have been born into a relentlessly first-world country, we have never been in short supply of any of them for longer than two weeks (that was electricity in a former home due to an ice storm-caused outage). They are all publically regulated.
At one time, the information was limited to audio through telephone wires. Now, it’s all kinds, packaged into Ethernet Packets coming to us and leaving with incomprehensible speed. First-world technology. (During the invasion of Ukraine by Russia, the flow of information was served by satellites owned by Elon Musk)
We are very happy with the current situation. However, some people suffer from a delusion created in their minds by misinformation that first-world countries would be better with less government and more private enterprise because that encourages wealth redistribution.
I am relentlessly in favor of living in the reality that human knowledge has revealed to our species through the efforts of countless other humans.
We have NASA scientists to thank for creating the world wide web or high speed data network. Our government’s history of allowing private interests to take control or possession of taxpayer funded discoveries for private gain typically becomes a very expensive source of frustration for we consumers that funded the discoveries in the first place.
How many decades ago did republican lawmakers gut our government’s financial ability to enforce federal antitrust regulation? They’ve enabled monopolies to take control of some of our most valuable products and resources and given them the financial power to continuously grab more power. Unfortunately, having a backbone or integrity are not a requirement to run for office at any level of government in this country.
I’ve recently been researching the personal data privacy issue that we all deal with on a daily basis. Companies like Meta and Google continuously fight state legislatures that consider creating personal data privacy and they win those battles. If all states were to clone California’s data privacy law we citizens would have at least some control of our personal data. The European union continues to far ahead of our country on data privacy regulation. Apparently, their politicians aren’t as easily bought as ours are. Of course, they also don’t have the major internet companies living within their borders either.
It’s a testament to those who wrote our rules for governance in the Constitution 300 years ago that the ideas it cast not in stone but in ink are still entirely applicable today.
As the first public declaration of liberal democracy, it has served the entire world.
Joanne, some of your wording is difficult to read, but “Yes.”
And, yes, Theresa, the “just and reasonable” definition can not be allowed to remain in the realm of the individual. TFG, and the voicing of many of his sycophants, Rudy and Flynn, i.e., show how dangerous this can be.
We seriously need just and reasonable regulations for net neutrality.
Like most other policies/laws/regulations new technology, little or no time is taken to consider “unintended consequences” and “who can take evil advantage of this” and “how can smart lawyers work around this”, etc.
Sorry, the cat’s out of the bag…too late…Hindsight is no insight, ever.
It seems the internet is actually a very uncommon carrier. It carries everything from soup to nuts, with emphasis on the nuts!
I worked most of my IT career as a Network Engineer. Here is a real life example of what an ISP can do to make your life miserable. This happened maybe about 2000. I worked for a large hospital network and we were starting to employ physicians and needed connectivity to the office so they could access various hospital based computer systems. Cable companies were making Internet connectivity widely available and it was cheap compared to what the telcos were offering.
A new concept to provide private point to point connectivity over a public network in a secure way was setting up a “VPN”, or virtual private network. In those days we installed a box at the hospital end and smaller box at the office end and they connected over the Internet and created a secure private tunnel over the public network. We even bought a “business” class Internet connection and it offered an amazing 50Mb connection speed.
Things worked pretty well for a few months, and then one day the office called complaining that about every 15 minutes, their screens would freeze for maybe 30 seconds and often they would get kicked out and have to log back in. It took me several days of looking at debug logs and then finally detailed network traffic analysis to realize that “something in the middle” was sending one end a “disconnect packet”. The box at the hospital was not sending this packet, but the office end was receiving what looked valid “disconnect packet”. After spending several hours on the phone with the cable company support team, I was finally able to the get the call escalated to ISP Engineer.
It turns out that they had a problem they were trying to solve. The terms of service didn’t allow home users to run a business on a residential connection. The also soon figured out, that if you were at home trying to run a business, you would most likely do it using a VPN. The set up some off the shelf public domain software to monitor the network for VPN traffic and if they saw that kind of traffic, they would spoof a disconnect packet and it would shutdown the VPN traffic for a little bit. Well, it turned out they hadn’t taken into account their legitimate business users, and our doctor’s office was getting whacked.
The is also a thing called “Quality of Service” monitoring built into almost all network equipment. It allows a network device to monitor the traffic and allow some traffic through all of the time, and if the pipe gets too full to drop traffic it doesn’t consider priority. This is what allows you to make voice calls over the network, while at the same time keep playing Call of Duty over your Internet connection. This can also used to selectivity drop anything else you don’t like.
Now imagine you’re a big Internet Service Provider, and you own a streaming service as well. Your customer buys your cable connection, but then subscribes to Netflix instead of Spectravision. You have the ability to make that Netflix subscription unusable, by dropping packets. In some cases the video will pixalate. In some cases the image quality will go from 4K to 2K, or even worse. Sound will skip out.
Scenario #2: Imagine you’re a government, and you don’t like Google or Facebook. You control all of the Internet connection points to international destinations. Using this same tools you can degrade or block any connections to Facebook or Google. On a trip to China, I encountered this with the “Great Firewall of China” first hand. If you didn’t have VPN software installed before you entered the country, you couldn’t get to Facebook or even your Gmail from inside of China.
I hope you can imagine why “Net Neutrality” is critically important to a functioning Internet in a free and open society.
In relation to Anita’s comment, which has more to do with Section 230 of the Communications Decency Act than net neutrality…
I would put forth than any service that wants Section 230 protections should only be presenting content to users, with the only filtering taking place to comply with other legal requirements (ex. Children’s Internet Protection Act among several).
If you do any algorithmic filtering/suggesting additional content, you can’t claim Section 230 protections. You are no longer just presenting content.
Hey Dan
I too, worked IT and a “Denial of service” attack from a spammer shut down our network for awhile when I worked in the early aughts. I was frantically working at home and on the phone with my boss trying to clean up the virus and getting the network back online for hours. It was very stressful. We had a T1 line straight to our partners worldwide and when it went down, money stopped coming in and the CEO and CIO were breathing down our necks.
Internet service is like electricity anymore. Hospitals, doctors, and patients depend on access because it’s life or death now. Same with international corporations with branch offices all over the world. We must demand that our government protects us because now, it’s a national security issue too. The public needs to demand some semblance of conformity and price controls. A girl can dream, right?
Let’s face two facts –
First, while the European Telecoms tried and failed to create an internet because each telecom wanted to own it, The Internet was create in the US under DARPA. We, the tax payers, paid to create it. (the World Wide Web was created by one person, Tim Berners-Lee, who was working at CERN, a European lab, again, not a private concern. He conceived of it to replace email mailing lists.
Second, if you look at the place of The Internet in today’s society, among its many functions, it has almost completely replaced what used to be areas covered by the telephone. Call a help line (utility, business, or whatever) and you are likely to be directed to a website.
Unless you are willfully blind, it is obvious that The Internet IS a Common Carrier.