Facebook the Common Carrier

A couple weeks after Mark Zuckerberg made his appearance before Congress to describe the privacy practices and overall business model of Facebook, two media personalities, Lynette Hardaway and Rochelle Richardson, appeared before the House judiciary committee to describe the discriminatory treatment they were allegedly receiving from Facebook. The two women, known as “Diamond and Silk” to their fans, argued that Facebook intentionally changed their algorithms to keep their conservative political viewpoints from appearing in the news feeds of their followers on the social media platform.

The hearing provided heated exchanges between the two Trump-adoring personalities and congressmen sitting on the left of the political spectrum. Engagement between Diamond and Silk and two congressmen in particular, Barbara Jordan Lee, Democrat of Texas, and Hank Johnson, Democrat of Georgia, caught my attention for the heat it generated in the hearing room.

Mr Johnson took issue at first with the subject matter of the entire hearing, driving home his point that the committee would best spend its time focusing on the investigation into alleged Russian meddling in the November 2016 elections or Mr Trump’s purported attempts to remove Robert Mueller from the election tampering investigation.  He then proceeded to disparage the credibility of Diamond and Silk by asking repeatedly whether or not they were paid by the Trump campaign. After the second or third time Diamond and Silk answered “no”, the congressman should have moved on but he kept asking the same question and brought back the same taint of ridiculousness he managed to pour on himself when failing in 2010 to articulate a simple concept of overpopulation of the island of Guam by projecting that the island would “capsize” if additional American military personnel were stationed there.

Ms Lee didn’t much better in the get it together department when she gave up two minutes of her time to introduce two kids visiting congress during bring your offspring to work day and tried to get time back in order to keep up an attack using vague questions about the timing of communications between Diamond and Silk and Facebook. Ms Lee also repeatedly asked Diamond and Silk if they had received payment from the Trump campaign. After answering no at least three times, Ms Lee just kept asking the same question. By this time Louis Gohmert, Republican of Texas, dropped the gavel repeatedly letting his home girl know that question time was over.

The only saving grace during the questioning of Diamond and Silk came from Steve King, Republican of Iowa. In his questioning he alluded to similarity between Facebook and FedEx, where, like FedEx, Facebook promises to deliver a message from user to follower. If the company is preventing those messages from being received then they may be discriminating.

Facebook prefers to describe itself as a digital commune where the world connects over a bottle of Coke, a smile, and a blunt. As a user, I look at Facebook as an entertainment medium and a channel for my blog. But, over a Coke and a smile sans blunt I can also see why it could be called a common carrier.

Roger LeRoy Miller and Gaylord A. Jentz define a common carrier as a transportation service publicly licensed to provide transportation services to the general public. A common carrier must arrange carriage for all who apply, within certain limitations. The delivery of goods to a common carrier creates a bailment relationship between the shipper and the common carrier.

A bailment is a situation in which the personal property of one person (the bailor) is entrusted to another (the bailee), who is obligated to return the bailed property to the bailor or dispose of it as directed.

The common carrier’s standard of care over the received goods is based on strict liability. This means that the carrier is absolutely responsible for damage to the property in its possession with the exception of five common law exceptions:

  1. An act of God.
  2. An act of a public enemy.
  3. An order of a public authority.
  4. An act of the shipper.
  5. The inherent nature of the goods.

Calling Facebook a common carrier could raise the issue of lost profit. Diamond and Silk could claim lost profits from Facebook’s failure to deliver their messages to their followers. Diamond and Silk would have to provide evidence that the messages are being delivered for the purpose of making money and not just the expression of an opinion. Diamond and Silk would also have to provide evidence that a clear communication of profit motive was given to Facebook and that Facebook understood that communication.

Facebook’s net neutrality posse never had this scenario in mind when they pushed for more regulation of internet freedom via the imposition of net neutrality rules based on a telephone statute passed in 1934. Nor did they foresee the very openness on the internet they advocate for would lead to third-party abuses from violating user privacy to one nation-state upsetting the elections of another nation-state in cyberspace. Unfortunately, to keep Facebook in line with its commercial users’ expectations, common carrier treatment of Facebook may be an option.

 

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