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All content by Kyle E. Mitchell, who is not your lawyer.

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Platform Neutralitywe used to have a principle for this

In all the overdue public discussion about content standards, moderation, and the big social media platforms, we’re hearing a lot of familiar, loaded terms: “censorship”, “monopoly”, “bias”, “selective enforcement”. But one word has been suspiciously absent: “neutrality”. As in “network neutrality”.

I’ve contrasted expectations of social media and cloud providers with expectations of other ad-supported “platforms”. Nobody’s surprised when older media stalwarts, like newspapers, TV networks, or broader media conglomerates, pick an editorial line, slant the news, or publish outright propaganda. Back when just three TV stations could ride the airwaves at once, there were strong political and business reasons to enforce a common, crowd-pleasing standard, even to ration access. Those limitations are gone. Common standards, like the “Fairness Doctrine”, went with them.

Net neutrality is an interesting second stop on this train of thought. It’s much the same kind of policy question. But it’s played out very differently along partisan lines. The substance is similar, but the associations are different. Which is handy for sussing out which political factors are independent rather than dependent variables.

Generalizing very broadly, Republicans have tended to side with Internet service providers, often large cable companies, against network neutrality. Democrats have tended to side with companies that rely on the Internet and startup R&D, like Google and Facebook, in favor of network neutrality. No president attacked net neutrality like Trump did. No president attacked Section 230 like Trump did.

The point here isn’t that the Republican Party is duplicitous, serving its clients rather than exalted general principles. That’s what parties do. The point is that what we really need here is a neutral, administrable rule that’s bigger than the interests at stake, now and the next time. A source of regulatory certainty for the companies and transparency for consumers that delivers the best overall result, rather than picking a winner among narrowly focused contenders. A rule of law that will apply to the next breed of “platform”, when “social media” seems as old-hat as “newspapers”. A way to stop throwing the matter wide open to debate, lobbying, brinkmanship, and patronage.

From a legal point of view, it’s not that hard to find. When laws of nature or elected government limit choice—there’s only enough spectrum for three stations, the government rations broadcast licenses, there’s just one Internet service provider with cable in your ‘hood—representative government should set standards. When there are alternatives, or could be, let competition fight it out. That has been our guiding principle, time and time again. It’s not perfect, but it’s what we’ve done.

The question then becomes whether Twitter, Facebook, AWS, and their “Big Tech” frenemies are more like the local cable company, who’s the only ISP in town, or more like a cable channel, one among hundreds or thousands. In many cases, there are no near competitors of these services, in a commercial sense, though there are nearly always some small, specialized players. The big fish love to point this out, insisting that “competition’s only a click away” whenever someone says “the A word”. I’m sure ISPs attempt to do the same—satellite?—when they can get away with it.

In the end, Parler apparently found a replacement registrar—the same one for Gab, The Daily Stormer, InfoWars, and others—despite preemptive “no thanks” from Google, Microsoft, Oracle, and DigitalOcean. It doesn’t appear to have found full-scale hosting, but is reportedly looking abroad, as 8chan did before it. There are service providers who specialize in the sites nobody else will take.

Clearly, those unwelcome on the most popular platforms, who nonetheless want to be the most popular voices, would prefer to bust up the incumbents than build up to their grade. Given networks effects and other factors, they may reason they stand a better chance of wrecking existing sandcastles than building their own.

But the idea that competition law—anti-monopoly—and common carrier regulation intersect isn’t nearly as cracked as the kind of content they want to host. The question is and remains competitive choice. To that end, our laws have long favored building over burning or overburdening. If right-leaning users have lost trust in Twitter and friends, it’s entirely unclear that trust would be restored by imposing federal content moderation standards upon them. Especially if those requirements have the side effect of reinforcing those firms’ dominant positions.

Your thoughts and feedback are always welcome by e-mail.

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