Ever since Justice Clarence Thomas observed in a concurrence that tech platforms like Twitter were analogous to common carriers, there has been increasing interest in the possibility of regulating them under common carrier principles. Most of the conversation has centered on potential legislation, not on applying the common law’s common carrier obligations to big tech. Indeed, when Ohio sued Google under the common law’s common carrier principles, commentators called the lawsuit “bizarre.”
In this Article, we argue that far from being “bizarre,” tech platforms are and should be subject to liability at common law for violating the duties of common carriers. After describing the core substantive elements of the common law of carriers—equal access rules, just and reasonable pricing, and reasonable deplatforming—we then show how it applies to operating systems, online marketplaces, search, social media, and virtual reality and the metaverse.
Among other things, this analysis demonstrates that common carriage applies across multiple domains and is most clearly applicable in business-to-business contexts. With respect to social media, we conclude that while common carriage principles apply, they allow for reasonable deplatforming—which may cut against what we suspect are the motivations of some proponents of regulation. And we argue that the common law of carriers could offer an opportunity to prevent a Wild West in new and emerging platforms, like the metaverse. In light of this analysis, the real puzzle is why there are so few suits against tech platforms under the common law of carriers.
Ganesh Sitaraman & Morgan Ricks,
Tech Platforms and the Common Law of Carriers,
73 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss5/2