Calling Facebook a Utility Would Only Make Things Worse

[Commentary] One phrase that keeps being tossed around: "Facebook should be treated like a utility." The idea is that the use of Facebook has become effectively essential to modern life, and therefore it should be regulated just like water or electricity. Let's get this right: Facebook is not a utility. It is an app. It may be a dominant app. It may even be exercising monopoly power unfairly. But it is not a utility, and muddying the definitional waters this way will only help the real utilities—like Comcast, Spectrum, AT&T, Verizon, and CenturyLink—avoid genuine oversight.

The real evil here would be to put Facebook on the same regulatory plane as Comcast, Spectrum, AT&T, Verizon, and CenturyLink. Those five companies would like nothing more than for everyone on Capitol Hill to confuse the two spheres of "application" and "carrier" and try to pass some special broadly worded legislation ineffectively covering "net neutrality" and "privacy" for both worlds. Why? Because then the carriers could stave off the greater risk (from their perspective) of being regulated as utilities under existing communications law. That labeling was what the Obama Federal Communications Commission called for in 2015, and what the Trump FCC has reversed; but the law is still there and ready to be used by the next administration. We need to hang on to the power to use that statute when the pendulum swings back toward reasonableness. Go ahead, fulminate about Facebook. But don't consider "utility" regulation as a fix. You'll only be helping those other guys.

[Susan Crawford a professor at Harvard Law School]