AI as a Common Carrier - A Utility

These views are not legal advice but business opinion based on reading some English text written by a set of intelligent people.

The question of whether Artificial Intelligence (AI) should be treated as a common carrier or utility, akin to electricity, is an important one, given its impact more recently in the last 2 years . This debate touches on issues of regulation, public access, and the nature of services enabled by AI. A pivotal case in this discussion is the Supreme Court’s Moody v. NetChoice, which scrutinizes a Florida law passed in 2021 that aims to prevent digital platforms from "censoring" content. This case's oral arguments have brought to the forefront the question of whether platforms like Facebook or LinkedIn could be considered common carriers or utilities.

Edison Laboratory at Menlo Park, Middlesex County, New Jersey 1880

Summarizing Moody v. NetChoice’s Oral Arguments

The Moody v. NetChoice oral arguments explored the Florida law limiting social media platforms' ability to censor content. Plaintiffs argued for the law, asserting platforms control public discourse and should not censor based on viewpoints. Defendants, representing platforms, claimed the law infringes on their First Amendment rights, likening their content moderation to editorial discretion. Supreme Court Justices questioned the law's broad application, its impact on free speech, and the practicality of treating digital platforms as common carriers or utilities, reflecting a nuanced debate on digital platforms' roles in public discourse and regulation's limits.

Based on the oral arguments provided by the plaintiffs and the defendant's attorney in-front of the Supreme Court justices on February 26, 2024, It is unlikely that social media will be treated as common carriers.

Common Carrier Defined

A common carrier, traditionally, is defined by several key characteristics:

Conduct: It must offer services to the public under fair and reasonable terms without discrimination.
Hosting Requirements: Like traditional common carriers, there are expectations or requirements that the carrier hosts various types of content or services without prejudice.
Public Communication: The service is open to the public, offering its facilities in a non-differentiated manner to all who seek it.
Regulated Industry Type: Common carriers often operate within industries deemed essential to the public interest and are thus subject to specific regulatory oversight.
Market Power: They typically possess significant control or influence over the marketplaces they operate within, necessitating regulatory measures to ensure fair access and competition.

The Case Against Social Media as a Common Carrier

Arguing that social media platforms are not common carriers rests on several distinctions:

Editorial Discretion: Unlike utilities that provide a service without regard to the content (like the electricity grid), social media platforms actively (and/or should) curate and moderate content, exercising editorial judgment.
Voluntary Association: Users choose to engage with these platforms under agreed-upon terms of service, unlike utilities where the public generally has no choice but to use the service provided as-is.
Diverse Marketplace: The social media digital space hosts a multitude of platforms, each with unique policies and user bases, suggesting a competitive environment rather than a monopolistic utility model.

AI as a Common Carrier

Conversely, there is a case for considering AI as a common carrier or utility, driven by arguments that:

Ubiquity and Essentiality: AI technologies are becoming pervasive and essential across various sectors, much like electricity, suggesting a foundational role in modern society.
Non-Discriminatory Access: Given AI's potential impact on opportunities, society, and information, ensuring equitable access could justify a common carrier model.
Regulation for Public Good: The significant influence of AI on public welfare, privacy, and security may necessitate a regulated framework akin to utilities, to safeguard against abuse and ensure fair competition.
Market Power Concentration: The AI industry is at risk of being dominated by a few key players, raising concerns over market power that common carrier regulations could address.

Conclusion

The debate over whether AI should be treated as a common carrier or utility is complex, reflecting broader tensions between innovation, free speech, and public welfare. The Moody v. NetChoice case highlights these challenges, offering a lens through which to examine the evolving role of digital platforms and emerging technologies in society. While social media may not neatly fit the traditional common carrier model due to its content curation role and limited use, the case for AI as a utility highlights the growing consensus on the need for equitable access and regulation in the digital age. As AI continues to intertwine with everyday life, the discussion around its status as a public utility will likely intensify, challenging lawmakers, technologists, and society to redefine the boundaries between technology, regulation, and the public interest.

As Thomas Edison said in 1880,

“After the electric light goes into general use,” said he, “none but the extravagant will burn tallow candles.”

This quote asserts the transformative potential of making essential services accessible to all, mirroring the argument for AI as a utility.

Patent drawing from Thomas Edison for an improvement in electric lamps, patented January 27, 1880.

References

Moody v. NetChoice, LLC

Further read

LLM, Us and Neuroplasticity

"Are you sure?": Unveiling the Quest for Human-Like Artificial Intelligence

Designers, creativity and AI

A LLM as a reflection of our inner most desires

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