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Regulate Twitter as a Utility?
Should Twitter, Facebook, or Instagram be considered as Public Utilities and regulated accordingly? This was the question posed yesterday by Scott Adams, of Dilbert (and election 2016 prognostication) fame. Of course the question itself assumes that the existing regulation of utilities, in their operations and services, is already a good (or least a necessary) activity of government, and that regulation in turn requires us to define what a Public Utility is. Merriam Webster’s definition is, to my mind, unsatisfactorily circular:
a business organization (as an electric company) performing a public service and subject to special governmental regulationhttps://www.merriam-webster.com/dictionary/public%20utility
Other definitions are more expansive and cogent:
A public utility is a business that furnishes an everyday necessity to the public at large… Typically a public utility has a Monopoly on the service it provides. http://legal-dictionary.thefreedictionary.com/Public+Utilities
The first condition listed above is “an everyday necessity to the public at large.” Looking strictly at traditional utilities, we would all agree that water, electricity, sewage disposal, and natural gas are “everyday necessities”. Increasingly, internet access is considered essential too. The companies (or in many cases the municipalities) that provide these to us are providing them to all comers (for a price) within their service areas. Are the issues of necessity and “to the public at large” the only factors, however, in the motivation for regulation?
The corollary condition above: “Typically a public utility has a monopoly on the service it provides,” is key to understanding the motivation for government regulation. After all, our electricity, tap water, sewage disposal, natural gas, and cable TV / internet are nearly always sole source to us as end users – that is to say we lack any competitive choice because it is highly unlikely that there would be multiple sources of any of these services available at our homes or businesses; sewers, water pipes, gas, and electric lines are expensive to lay and there just is not room to have competing branches of these under our streets and foundations. For entirely natural reasons, we are all largely stuck with what’s there. These are natural local monopolies, and we have more than a century of legal precedent for treating monopolies differently from other businesses. These services are deemed necessary, we are all stuck with monopolies providing them, and so our state and federal governments regulated them.
Why the regulation? The justification usually given is that this is for our own protection. Monopolies (so the argument usually goes) will act with caprice towards their captive customers, inflate prices beyond what is fair, arbitrarily deny necessary services, restrict services beyond reason, and otherwise abuse customers who cannot seek redress through a competitive marketplace. In other words, utilities have no competition and so there is no natural limit to what they might do to us, including cutting off service just because they do not like us, or do not approve of us for racial, religious, political, or social reasons. (mind you, I’m not saying I agree with this rationale, I’m just laying it out)
A public utility, once regulated, is restricted in how it conducts its business. Its prices are negotiated with the government. Its services are dictated by the government. Its every-day practices and rules are set by the government. For instance, if you are late in paying your water bill, your water company cannot immediately turn off your water – it must follow a defined process and give you ample time to make your account current. The utilities cannot put undue restrictions on what you do with the service either, nor arbitrarily change its terms of service. Whether you decide to use your electricity to play video games all day, run a wood shop, or write for a white-supremacist website, your electric company cannot stop or censure you (with exceptions being made for activities or equipment that could damage the grid or degrade service for your neighbors). So long as you pay your bills (and whatever you are doing is legal), they have to let you use their product at your own discretion, and they cannot punish you or cancel your service.
Now to the meat of Adams’s argument (emphasis mine):
My sketchy understanding of the law is that the government is only responsible for making sure the government itself is not abridging free speech. I think most of us agree that we don’t want the government volunteering for any more work than the constitution says it should be doing.
But shouldn’t the federal government get involved if a few monopoly corporations start to control the national conversation by filtering out voices that disagree with them?
Why is Adams looking at this?
For example, Twitter is apparently “shadowbanning” me because of my past Trump tweets, or so I assume. That means my tweets only go out to a subset of my followers. The rest don’t know I tweeted. My followers tell me this is the case. They have to visit my timeline to see my tweets…
Realistically, can I quit Twitter and be a successful media personality without it? Not in today’s world. The only way I could make that work is by having a huge presence on Facebook or Instagram.
But that might be a problem too…
Adams here is a necessity for being “a successful media personality”, which on its own hardly seems to about “an everyday necessity to the public at large”, but is it a necessity in a more general sense? Is Twitter a necessity for the public at large outside of celebrities and pundits? Is it a public necessity to be able to broadcast your thoughts to anyone who wants to listen? Has social media in general (which Adams also addresses) turned into a necessity in our lives? Strictly speaking, electricity is not a necessity per se, but even the Amish find ways to use it within their lives. Has mass communication capability offered by social media raised to the level of necessity as well? One could argue that social media is turning that way as it is now a means open to all for the spread of news (or disinformation), opinion, and gossip, and that it bypasses the traditional outlets and gatekeepers of information.
Is Twitter monopoly-like? If it is a monopoly, is it exhibiting the worst behaviors so feared of monopolies? Twitter is certainly proving to be arbitrary and capricious with its users, if reports from Adams and others are true. If a customer is using the service in a way that Twitter does not approve, then Twitter will remove the user, but the terms under which this is done are opaque. If Shadow-banning (that is filtering or blocking communications without admitting to it or citing just cause) is a real phenomenon, is Twitter not abusing its customers? Is Twitter restricting service to its customers because of their personal politics?
If social media is a public necessity, something that, like electricity and running water, should be equally accessible to all under equal terms, and if Twitter is a monopoly for its particular type of service, should it then be audited and regulated by state or federal governments to ensure its good behavior?
I can’t be 100% sure that Twitter is shadowbanning me to limit my political speech. They might have a bug in their system, for example. But it would be a big coincidence if they are not, given how many Trump supporters were targeted by Twitter in the past year.
…That lack of transparency is just as much of a problem as an actual abridgement of free speech. if I can’t know whether my freedom of speech is being limited by corporate overlords, how can I have trust in the Republic? And without trust, the system falls apart.
I want to trust my government, but without freedom of speech, I find that impossible. That’s why I support creating a law requiring the government to audit the major social media sites to certify that freedom of speech still exists for all classes of users. (Within reason.)
You might think there is not much risk of losing the right of free speech in the United States. But keep in mind that I have already lost my free speech in a practical sense. The social media tools you take for granted are not available to me in their full form.
Is Adams right here? Is Twitter interfering in the free speech of Americans, and should it be tamed? Or should we allow the marketplace to eventually sort this out, letting competitors eventually break its monopoly on communication?
Published in Law
The recent election belies that claim.
And cat videos, and angry screeds masquerading as cat videos.
Too soon to tell. We had one long wild swing one way, now we’re swinging off another.
By consenting to meet with President Obama on the issue of helping him craft narratives to fight terrorism, Twitter forfeited any right to be treated as a private company. http://www.cnn.com/2016/02/24/politics/justice-department-apple-fbi-isis-san-bernardino/index.html
Actually, in re-reading your original comment, I think we are saying the same thing, that there is a barrier to entry.
And certainly, new services can displace (and perhaps are displacing) the original entrants in the social media market.
Given Fox New’s slobbery devotion to Donald Trump can we say the same about them?
Adams doesn’t have a problem with chilling speech – his problem is that he is being shadow banned.
I’m not sure how I feel about it. Twitter and FB have monopolies; there is no alternative. If your business (in the case of SA, media), and you are being treated unfairly by them, I’m not sure what recourse you have but it’s certainly infuriating. And its effect can be chilling.
I’m blown away by the stuff that isn’t seen by the regular FB user – I’ll get 100 Likes on a pic of my granddaughter but even my sister doesn’t see an article I share.
If Zuckerberg goes into politics???? Talk about chilling.
It’s a problem that I don’t think regulation can solve, though. I find SA to be a little naive in that regard.
I don’t pay much attention to Fox, so I don’t know if they attend his meetings on crafting narratives. But I’m pretty sure Fox is a TV thing, so I’ve already written them off.
Oh, just like Ricochet?
Thanks Skip. I’m going for a cheap chuckle, and you gotta take me seriously. Why would anybody take me seriously?
I don’t use any of these services, but Ricochet is a social network I like, and we use another at work. I can indeed see utility in them. A necessity however they are not.
For a new thing to become a necessity it must first displace the alternatives. That generally occurs by being so useful, or so convenient that there would be a major efficiency loss by returning to previous alternatives. Sure, Twitter, Instagram, and Facebook have stolen some of the traffic from older forms of communication. They have also increased the volume of communication, but few of those new communications are either necessary, or even helpful. They’re largely driven by primitive social impulses in the brain. I’m not suggesting that’s bad, but it’s far from essential.
These media do permit the convenient communication of community sentiment that earlier communications didn’t facilitate well. The fact that the sentiment can be misunderstood, or the community misidentified doesn’t eliminate the utility. It merely suggests where these services require improvement. That said, I could see some form of social media being necessary in the future in the same way electricity is necessary now – we would be far worse off without it.
Twitter and Facebook are literally competitors. There are also a number of other social media competitors including Google+, LinkedIn, Tumblr, Instagram, Path, Pintrest, Quora, Reddit, Snapchat, etc.
This couldn’t be more false.
If people who say vile, disgusting, unfair, and unsupportable things do not have freedom of speech, then nobody does. That’s how it works.
This includes both the people who say bad things about the Donald and people who say “I won’t read you anymore because you say things about the Donald.” Nobody promised you that you would agree with everything published anywhere, including here. Suck it up, buttercup.
NOTE: Clearly, Titus, you’re no buttercup. That was a general observation.
Despite the dictionary definition of a utility, necessity is an insufficient reason to regulate an industry. Few necessary things are regulated in the manner of public utilities. Agriculture and healthcare come immediately to mind. Both are heavily regulated, sure, but not in the same manner as utilities, or for the same reasons.
Utilities were originally regulated because they are monopolies. If we examine electricity, for example, the emergent electricity market would have been highly competitive had not Edison gobbled up all the patents. Demand was modest and distribution was highly localized, so barriers to entry were lower and economies of scale were smaller. However, with the emergence of alternating current, long distance transmission became practical and economies of scale grew sharply. As demand increased, public rights of way couldn’t accommodate a plethora of providers, so communities issued franchises, reducing competition. These factors resulted in a natural monopoly for electricity – a condition in which a monopoly is the most economically efficient market. People can disagree on this, but I think it’s appropriate to regulate such monopolies.
Not all monopolies are natural however. Some things achieve monopoly status in a competitive market because they are far better than the alternatives. In order to protect consumers, these monopolies too require regulation, but of a very different kind from natural monopolies. The appropriate role of government is to make sure the market remains competitive. That doesn’t necessarily mean that there be at least two providers. Rather it means that if a better product comes along it can compete with the incumbent. If we look at Twitter, for example, the government need only ensure two things. First, that twitter not engage in anticompetitive practices. For this industry, that might take the form of twitter paying carriers and ISPs to block their competitor’s traffic. Second is that Twitter not be allowed to buy up nascent competitors. Twitter’s broke, so no I’m not in the least concerned about either of these. As such, I see no reason at all to regulate Twitter.
I agree. However, I’ve already objected to our county road department using Facebook to keep people up to date on the status of road improvements. I gave as my reason the fact that I don’t have a Facebook account on account of Facebook’s participation in censorship in Russia, and that this leaves me out. I may have mentioned Facebook’s censorship in the U.S., too, but I’m too lazy to go look at my old e-mails to see for sure. The county does give a way of reading the text of the latest postings without Facebook, but I can’t reply with my own comments the way other citizens do.
I plan to raise more objections of this kind as the situations arise.
Sure, I know what you mean, but I hew to the older, more robust American opinion, that the right peaceably to assemble is not about burning flags, which ain’t peaceable; that the right to free speech has nothing to do with pornography or any number of obviously anti-social display–nor with giving provocation to people. A society where people humiliate each other in the streets with speeches with impunity is not really civilized.
I grant that political freedom includes a lot of ugliness, but I deny that it can be the kind of individualism that robs all communities of any power to govern themselves.
I smile at the kind of conservatives or libertarians who think they’re so smart for super-radical individual freedom but cannot think their way to fighting for a man’s right to smoke as an act of political protest–burning flags, on the other hand, enflames their sense of justice, so to speak…
One could make a case that LinkedIn was vital in the utility sense, but I can’t imagine any other social media falling into that category.
What you have listed can certainly go under the heading of “social media” but I don’t see who the competitor for Twitter is. FB and Instagram I guess has competition with Google +. and LinkedIn.
I have no idea what the solution is, but SA is definitely being shadow banned. I don’t know why and neither does SA. He goes to great lengths to say all his experiences with Twitter, Periscope and Instagram might be a coincidence. Unlikely, but possible.
And as I said in a previous comment, if Zuckerberg goes into politics, things get thornier still.
The government will monkey with the definition of what constitutes ‘obscene’ to suppress that which is to be suppressed.
As far as smoking goes, the only protest I can think of that would involve lighting up is protesting not being allowed to light up.
Well… Adams is complaining about a community exercising its power to govern itself.
Sure, social media isn’t old-fashioned, artisanal community. It’s commercial, “artificial”, and honestly not my scene once it’s grown big enough to have lost that “small town” feel (which Ricochet hasn’t).
I get the willies just logging into Facebook, despite all the conveniences it offers, and despite the fact that there are some real-life communities with a presence on Facebook which it might do me good to not wholly avoid.
But to insist that Facebook, Twitter, etc, must become public utilities in order to serve individual Americans’ right to speak is to rely on the state to enforce the very same “kind of individualism that robs [] communities of any power to govern themselves.”
I observed a very interesting debate about “utility” and “monopoly” on Cape Cod when I first moved here. Cable television had just become available, but it was expensive. A group formed around the idea that cable television was a utility and monopoly based on the notion that because of some strange hill and valley geological formations that the glaciers left here, Cape Codders were unable to view network television beamed from Boston or anywhere else. One had to have a super antenna to watch the evening news.
This seems like it would be a simple case of saying that the antenna was the alternative to cable television, so the answer is no, but the television access committee prevailed and injected itself as a regulator into the cable television business. Their efforts did result in lower prices, but it did not result in everyone’s having access to cable television for free. (I’m not sure if they wore down the cable company, or if the cable company decided it was becoming a public relations disaster that it wanted to end as quickly as possible.)
I have to admit that for a couple of years, there were some extremely interesting debates on the Cape concerning the definitions of “utility” and “monopoly.” :)
Yeah, pretty much.
We’re in agreement, then! And I think I agree with
Still, although none of us get to decide what is un-American in the descriptive sense (we can’t say “that’s just not what Americans do” when Americans evidently do it), I understand trying to persuade others that the impulse to regulate social media is un-American in the normative sense – that it’s not what America should be about. I could see it becoming a popular cause, though, although not necessarily.
“That’s not who we are.”
“No true Scotsman…”
Actually, it is hard.
They both take advantage of the network effect, which is when you get more value out of something because of the people who are using it.
The network effect is the barrier to entry. A fancy social network with the best user interface and hot new features is STILL not worth anything to me if my extended family isn’t on it.
If it weren’t hard, we would all be using Google Plus, or Ning.
That said, web sites are one of the few areas that have (so far?) mostly escaped the massive regulatory burden of the state. This is why all the silicon valley companies are focusing on worthless web sites that no one cares about rather than solving health care and other problems with technology. (I think one of the ricochet founders had a post about something like that.)
[edit] Ricochet person (founder?) I was thinking of was http://ricochet.com/members/georgesavage/ but I couldn’t find a post where he talked about his company trying to do something different in silicon valley.)
No, there should be no government action against Twitter, but here is John McCain after the Dixie Chicks were banned from some Cumulus Media Inc. stations in 2003:
“It’s a strong argument about what media consolidation has the possibility of doing. If someone else offends you, and you decide to censor those people, my friend, the erosion of the 1st Amendment is in progress.”
McCain favored government action back in 2003: “McCain, the committee’s chairman, is a leading opponent of radio consolidation. Last month, he proposed legislation that would would require industry giants such as Clear Channel to sell some holdings to come into compliance with new media-ownership rules approved by the Federal Communications Committee.”
If McCain were consistent, he would putting Jack Dorsey and Mark Zuckerberg in front of a Senate committee. But he only grandstands for liberal approval.
What happens when President Trump is subjected to a ban by Twitter?
True, but every industry has a barrier. What must be coinsidered is the total of all barriers. If there were huge start-up costs, the time needed to overcome the network advantage Twitter enjoys would be virtually insurmountable. Fortunately, start-up costs are modest.
Furthermore, it’s a type of network that poeple can form very quickly. If Twitter behaves in a manner which many conusmers don’t like, they can switch in an instant. Look how quickly Snapchat went wild. Not all network advantages are created equal.
There’s a widely accepted position that the use of limited spectrum requires goverment regulation. That’s not applicable to Facebook. That said, it’s not applicable to radio anymore either. With digital broadcasting there’s sufficient capacity in the current FM spectrum to easily accomodate the demand in the largest urban markets. Not that the government will give up their control over it.