The Common Carrier Privacy Model

43 Pages Posted: 4 Mar 2018

See all articles by Adam Candeub

Adam Candeub

Michigan State University - College of Law

Date Written: February 22, 2018


The Federal Communications Commission (“FCC”), in its landmark and controversial “network neutrality” 2015 Open Internet Order, prohibited internet service providers, such as Comcast and Verizon, from discriminating against non-affiliated content-providers. In doing so, the FCC relied upon the Communications Act of 1934’s section 201’s “common carrier” jurisdiction.

While section 201 gives the FCC vast power to curb anti-competitive network practices, section 201 also permits the FCC to regulate common carriers’ privacy policies. Specifically, section 201 allows imposition of the duty not to disclose the content of messages entrusted to carriers and gives individuals rights to recover upon breach.

This Article is the first modern examination of section 201 privacy obligations — which have been largely forgotten since the late nineteenth century. Recent court decisions have ruled that the FCC’s common carrier jurisdiction preempts the Federal Trade Commission’s (“FTC’s”) jurisdiction over internet firms, giving common carrier privacy sudden policy prominence.

Because common carrier privacy gives individuals the option to protect the confidentiality of messages and the right to recover damages upon breach, common carriage privacy contrasts with dominant top-down approaches to privacy, such as the Health Insurance Portability and Accountability Act (“HIPAA”) and the Fair Credit Reporting Act (“FCRA”), in which regulators determine what information receives protection and on what terms. Studies consistently show that consumers typically neither know nor appreciate their rights under these privacy regimes. In this way, forgotten common carrier privacy offers a new set of both practical and theoretical tools.

Keywords: Common carriage, privacy, Communications Act, network neutrality

Suggested Citation

Candeub, Adam, The Common Carrier Privacy Model (February 22, 2018). UC Davis Law Review, Vol. 51, 2018, Available at SSRN:

Adam Candeub (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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