Slashdot Mirror
Does Net Neutrality Violate the Fifth Amendment?
SonicSpike writes "A forthcoming paper from Boston College Law Professor Daniel Lyons offers an even stronger basis for challenge: The Fifth Amendment. Under Prof. Lyons's theory, net neutrality would run afoul of eminent domain. It would constitute a regulatory taking, requiring just compensation.
Under US Supreme Court precedent, any governmental regulation that results in 'permanent, physical occupation' of private property constitutes a per se taking. This is true even where the government itself is not doing the occupying. If the government grants access to other parties to freely traipse across private property, it's still a taking. In effect, the government has forced one party to give a permanent easement to another party, destroying the first's 'right to exclude.'"
The title makes no sense.
Bullshit! If you want the Internet to become as bad as cable tv is these days then buy into this bogus horseshit idea this guy is peddling.
do not require just compensation.
This whole approach smacks of ignorance.
Fine, just impose net neutrality on those segments of the infrastructure which traverse land not owned by the ISP.
Oh, wait, that's almost all of it.
-- Alastair
If the government grants access to other parties to freely traipse across private property, it's still a taking. In effect, the government has forced one party to give a permanent easement to another party, destroying the first's "right to exclude."
The carriers already allow access to other parties. They just want to discriminate against some 'parties' which probably violates some other law, regulation and/or amendment.
What if taxpayer money was used to pay for all or part of the privately owned infrastructure?
Shouldn't the good professor himself consider taking the 5:th?
But for other carriers I would say no.
Simple reason is that they have been granted access to public facilities. AKA. right of way. They have also taken public money in the form of taxes that where then paid to them to improve access "Universal Access".
A wireless carrier on the other hand if they have paid for all their own tower space might have some wiggle room but then they are using the public airwaves which is also in a sense public resources.
They do pay for those but they probably also agree to public regulation of them so over all I would say no.
But I am not a lawyer and my limited understand is based on logic and common sense which often do not seem to apply to matters of the law.
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
No propery is being taken.
any governmental regulation that results in "permanent, physical occupation" of private property constitutes a per se taking
If so, then the speed limits on the highways constitute a per se taking. And I don't see how a regulation can be considered a "permanent, physical occupation". The laws against battery apply as much inside my own home as it does in a public place.
Free Martian Whores!
No.
OK, fine. If the telco monopolists are going to claim that basic regulation of their service to maintain network neutrality and ensure a sensible, working Internet constitutes an exercise of eminent domain (though somehow, similar regulation of voice signaling does not...like to see the pretzel-brains that can argue that with a straight face), then fuck 'em. Congress should just nationalize the entire telco grid and have the FCC lease back access to any comers on a common price basis, reducing the telcos to value-added providers and making them compete with any and all ISP start-ups on a level playing field. Kind of like our national highway system...
Come to think of it, that's a pretty good idea no matter how the courts rule.
The Future of Human Evolution: Autonomy
"Just compensation": they run their cables on public land, access to that land is their compensation. Also, lack of Net Neutrality is a first amendment violation.
Because the government has given them billions to build out infrastructure. Therefore infrastructure is definitely NOT private property. The government merely grant them rights to operate and profit from the infrastructure that they were paid to build. If they want to use this argument, I either want my tax dollars back, or tell them to build their own infrastructure and give the taxpayer paid stuff back.
So any gov't regulation of, say, electrical power quality from private power utilities or water potability (drinking safety) for water companies constitutes a taking? Because minimum quality regulation (eg. that internet access is not arbitrarily limited on bandwidth to/from specific source addresses) seems like an equivalent and reasonable regulation.
People who accept this argument really believe that any kind of regulatory limitation by gov't on economic activity constitutes a taking. Taken to it's logical conclusion, enforcement of fraud laws constitutes a taking from my right to con people.
"In effect, the government has forced one party to give a permanent easement to another party, destroying the first's "right to exclude.""
They surrendered their right to exclude when they agreed to join a network not controlled by any one ISP called the Internet.
I don't know, Serious Cat, I think they tried translating the Constitution into lolspeak before and it wasn't very popular.
No kidding!!! What do you say at this point?
If you build walls everywhere, it will no longer be the Internet. The Internet is what it is today, because those walls only exist when entering private networks. Walling up all the thoroughfares will only damage what exist today.
The Internet is give and take. If everyone just wants to take, then it will fail.
Wow, does that even mean anything? It's like a metaphor of a metaphor.
Someone needs to read up on what a common carrier is.
These companies are providing public access to public web-sites using cables strung over public land subsidized by public money. I can see why they would want to call it private...
That said, the Obama administration played right into the hands of panicked internet regulation doomsday Republicans with their ADA-waving "websites are public places and subject to specific access requirements" talk in the last couple of weeks.
If we're going to talk about amendments, let's talk about the first one.
the website: openmarket.org
the conclusion: That's not smart policy -- jeopardizing taxpayer dollars for a scheme that was ill-conceived from the very beginning.
Why am I not surprised.
Somewhere along the line, "open markets" became an end unto themselves,
mostly through deregulation, instead of a means to create better competition.
And they make an entirely unconvincing argument about net neutrality
being equivalent to an easement on the service providers' property...
Property which itself could not exist without numerous easements on public and private land.
Hell, I have one of those large green easements in my front yard. And another for the power company.
[Fuck Beta]
o0t!
Who is this guy, Ted Stevens? Seriously, he's suffering from a "Series of Tubes" mentality.
The net is a series of agreements. Business and technical agreements. Most of which are applicable to interstate commerce. They can be regulated. Get over it.
According to Conservative/Libtardian dogma ANY regulation of any sort is a government "taking".
The man who never alters his opinion is like the stagnant water and breeds Reptiles of the Mind -- William Blake
This sounds to me like a strong argument for a publicly-owned network infrastructure. If private companies have a constitutional right to screw with your data, then the only answer is create a municipal organization with legally instantiated regulatory oversight to ensure neutrality.
So many times the Internet has proven that you cannot build stable competitive markets on top of proprietary services (just look at Facebook, Apple, WoW, etc--what happens to all the add-on companies when the host company gets fickle or bankrupt?). In order for there to be a proper free-market in web-delivered services, the web itself has to be freely accessible and not subject to the whim of huge corporations.
Just think about the US highway system. Everyone is allowed to use it for whatever purposes they like, fees for using it are for the most part levied fairly and without favoring one member of the competition or the other. Now imagine if all the roads in the country were private toll roads. Which trucking company would come out ahead: the one with superior efficiency and service, or the one with back-room discounts granted by the toll companies?
Granted, this will not protect us from government meddling, but that's no different from the current system. There would simply be fewer layers in which to obfuscate the interference.
It is time for an open Internet, and that does not include for-profit companies with private property. The Swedish Pirate ISP is only an interim solution, but I am looking forward to seeing how it fairs.
Except for the fact that the "lines" as it were belong to the public, as the public has paid for them to be installed and to be maintained. Check your phone bills - tax for this - tax for that.
We own those lines - they just seem to forget that when it suits them.
A computer once beat me at chess, but it was no match for me at kick boxing. Emo Philips
If so, then the speed limits on the highways constitute a per se taking.
No... Speed limits on the highways would be, at best, an analogy to some sort of governmental-imposed bandwidth regulation on the interwebs.
And I don't see how a regulation can be considered a "permanent, physical occupation". The laws against battery apply as much inside my own home as it does in a public place.
Nor is battery a good analogy. Go back to the root - net neutrality. It's about an ISP wanting to charge more for "premium" access and if you don't pay, they bump you down a tier or limit your access. A proper analogy would be if you charged visitors to your house for access to your bathroom.
So, with that analogy in mind, if the government required you to let anyone and everyone use your bathroom - i.e. physically occupy it - and the requirement was permanent - i.e. anyone can use your bathroom, forever - then it would be a taking. Same idea as if the government required you to let people drive across your backyard
BUT, here's where he seems to be wrong (without having read the paper)... an ISP isn't like your backyard or your private residence. They're engaged in commerce, and under the Commerce Clause, the Federal government has the power to regulate them. The case on point would be Heart of Atlanta Motel v. US, which said that the interstate commerce clause allows the government to establish regulations that prevent discrimination in commerce. And providing inferior accommodation to a group of people is very similar to tiered internet service.
And just in case anyone says "but people who refuse to pay for premium service aren't a protected class", Heart of Atlanta wasn't about the 14th Amendment, it was about the Commerce Clause and the Federal government's power to enact the Civil Rights Act in the first place.
Why is telling ISP's what they can do with their copper a fifth amendment issue while telling people to let ISP's string their copper from poles installed on their property, uncompensated by anything more than the "public good," not a fifth amendment issue?
Guess what the ISP's precious pipes run across? Oh, thats right, easements carved out of people's physical property by eminent domain.
The 5th amendment argument is cute, and maybe the professor will get a paper out of it; but "Oh no, not eminent domain!" is not an argument that the ISPs would be wise to start.
With the exception of bits and pieces of backbone, that may in fact be owned outright, the majority of an ISP, cable company, or telco's lines run across easements carved out of private property by eminent domain. Although they have been very effective at propagandizing to the contrary, the majority of their cabling(and basically all of the "last mile" that actuallly allows them to have customers) is permitted at the mere pleasure of the state, theoretically representing the interests and consent of the citizens.
Their "property" is founded entirely on 'state taking' by eminent domain. If they want to argue that they should be immune, they had better have an excellent reason why the millions of people whose property their wires cross should not. The ISPs have, rhetorically, been very effective at linking what they want with the value of "upholding private property"; but their very existence is, in fact, predicated on the systematic expropriation of private property on a massive scale.
Given the relative political influences involved, this would never happen; but a real upholding of the Fifth amendment would be to reverse the ISPs' easements, and tell them that they have a week to either agree to our terms or remove their equipment.
The argument that the constitution's protections for private property apply to the internet is a poor one.
The internet is a device created by commons (Darpa), which over time allowed everyone to use it. The idea of sacred inviolable private property comprising parts of it is hollow, since it does not function except as a whole.
We need to determine what we want this internet to be, and legislate that. If prior rules of private ownership get in the way, modify them to allow us to create the internet we need.
I want it to be a place where information and access is shared and available equally.
If someone else wants it instead to be a place they can make as much money as possible by whatever advantage they can gain, then we should discuss and determine the outcome.
A common carrier must take any traffic presented to it. The first case I can think of was with railways. The courts said that the railways couldn't discriminate among customers. They had to sell space on boxcars to everyone at the posted rate.
The principle has been extended to telcos. I don't see why it doesn't apply to ISPs.
To make the bogus eminent domain argument you have to upset cases that go back more than a hundred years. It sounds like the kind of argument a lawyer makes with not much hope of it working. In many respects a courtroom is a crapshoot. You never know when a really off the wall argument might work.
Leave it to a lawyer to try to equate "imagined position of leverage" with property, no matter how abstract. This makes about as much sense as saying that the laws against blackmail and extortion are a 'taking' of mobster property.
It is not really the property of the telcos, it already belongs to the American People. Problem solved. And Net Neutrality is not about changing anything, it is to prevent a corporate take over of the internet. Net Neutrality is to keep the status quo.
Wow.. .that is really, really, really stretching it, isn't it?
There is a war going on for your mind.
The argument that net neutrality is the same as a permanent physical occupation of the private property is a taking under the fifth amendment strikes me as silly.
Take that away and what do you have left? A regulatory taking which reduces the property value of the private property being taken. Well, guess what? My house is being regulated in a similar fashion: I can't just build anything I want--and that arguably reduces the value of my property because I can't use it in any way I so choose. (And while some of those potential usages are silly, some of them would arguably add value to my property--such as building a 3,000 square foot livable basement which would add around $400/sqft to the value of my house.)
And if we're talking about an easement that was added to the property after acquisition, we just passed a zoning which made my area a "historic neighborhood", effectively adding a new easement.
So where is my money?
If the professor wants to go down this route, then there are plenty of examples of regulatory takings where people bought property only to discover after the fact (and after the title search) that the government has decided to turn their property into a wetlands or into part of a private reserve--thereby making it impossible for them to use the property as intended or to sell the property, since it is now worthless. Where is their money?
As someone with an economics bent I'd like to see government regulatory burdens on private property treated in an economically neutral way: to use the takings clause to require additional government impositions on private property to require governments to compensate the owner for the resulting devaluation, unless a mutual agreement is reached. However, that is not how the takings clause is being used. To over-reach here on net neutrality is to abuse how we are currently interpreting the takings clause.
If this argument was true, then we could not have common carrier laws either. Obviously, we would not want the phone company to be able to monitor or modify telephone conversations, and nobody thinks that violates the constitution. This is a huuuuuuggee stretch.
No, nix, nil, zilch, zip, nada, null, nuh uh, no way, incorrect, not kosher, wouldn't fly, not good enough for government work, good luck with that.
Libertarians somehow believe that private businesses should be stronger than governments but weaker than individuals.
There's this little thing about "public accommodation" at play here, like in the civil rights laws. Equal treatment is the rule we must apply. We don't let the phone or electric companies prioritize their customers... I hope we don't. We need to turn the ISPs into common carriers.
For justice, we must go to Don Corleone
Wires are public property when public funds subsidize them, or legislatively mandated customer fees provide reimbursement to the telecom companies for building FTTH.
Please remember that this is the same Daniel Lyons that covered the SCO trial and (stripped from wikipedia),
claim[ed] that Groklaw was primarily created "to bash software maker SCO Group in its Linux patent lawsuit against IBM, producing laughably biased, pro-IBM coverage".
Between 2003 and 2007 he covered the SCO cases against IBM and against Linux. He published articles like "What SCO Wants, SCO Gets", where he stated that "like many religious folk, the Linux-loving crunchies in the open-source movement are a) convinced of their own righteousness, and b) sure the whole world, including judges, will agree. They should wake up."
We should wake up... to the fact that Daniel Lyons is just like John Dvorak, and will write the most inflammatory stories with the flimsiest amount of research, and doesn't deserve anyone's pageviews.
We always knew Comcast was corrupt, here's the proof: http://tech.slashdot.org/comments.pl?sid=1909890&cid=34545432
You rent space in a warehouse, carve a statue that sells for millions? ...?
Will the gas company, electric company, water company and trucking company knock on your door and ask for a share?
Their private "electrons" helped you make millions, all the pipes, wires, water to clean, shipping... where will the infrastructure for more "electrons" come from if they cannot charge you for profits made
You rented a space, what you do in it is defined by a contract, not the end result ie the profit per 'electrons' in motion.
Domestic spying is now "Benign Information Gathering"
If you have only one broadband provider, then even if they are brutally honest about how they mess with your traffic, then most people are still going to use that.
It think that there are lot of arguments that can be made against the Fifth Amendment position here, mostly through the fact that the government does indeed have the right to regulate interstate commerce.
There is very very little that the US Federal Government does well. Everything they touch seems to turn to crap. If they start regulating the internet under the guise of "Fairness" it will go from rocking to suck very fast.
As for the argument of telco monopolies, they are rapidly becoming a thing of the past. Where I live, which is admittedly a population center, I have no fewer than 4 choices for any of my 3 telco services (Phone Internet and TV). Even my family members who live in rural areas have at least 3 choices for TV, 2 choices for phone and soon will have 2 realistic choices for high speed internet services.
I say that the feds have enough power, lets not enable them any more.
Who ever could have guessed someone named Dan Lyons is an asshole?
the USA can't have nice things like a working mobile phone system
I do not think it means what you think it means.
But even assuming we're going to let you stretch the Fifth Amendment to say what you think it says, it still doesn't apply. Net Neutrality's not "taking" anything; that would be forcing a company to transmit internet packets whether they wanted to or not. It's just saying that, if you are going to transmit packets, you need to transmit all the ones you're handed without bias. You're not required to quarter soldiers in your home, but if you're running a boarding house, you can't prevent soldiers from staying. You're not required to run a restaurant, but if you do, you can't disallow a given race/religion/other protected class.
There are many good arguments both for and against Net Neutrality legislation. This is not one of them.
If you extend Lyon's inane logic to the FCC domain as a whole, then it is an illegal taking for the FCC to regulate what frequencies/bandwidth you must use for communications.
Utter trash.
...didn't taxpayer money go into establishing a lot of what has since been privatized (and I assume expanded upon, to be fair) and sold off to corporations? Net Neutrality (or some rational variant thereof) should be important enough, frankly, to warrant it's own constitutional amendment equivalent to (whether its an amendment or not) freedom of the press (which is arguably nonexistent now anyways) regardless of what the 5th says. Our system was made to be flexible and editable enough to ensure that, as times change--as things occur that the founding fathers could not have guessed at--we would be able to maintain our freedoms (which, mind you, come with equal responsibilities, don't get me wrong.) Submitter's having to ask this question tells me something is wrong with the way things are headed.
No. Almost nothing is a regulatory taking. There's a very narrow area that's protected, and this almost certainly does not fall in that area.
Ceci n'est pas un post
If we don't take action now we'll end up with "public Internet utility" companies just like we have "public Gas and Electricity" companies. In reality they receive federal funds to keep them operating but they answer only to their stockholders and not the people. If they answered to the people...wait for it...wait for it...we'd be communists? (For those of you that think that, go look up the definition.) Nope, we wouldn't be, we'd actually have a democracy where everyone has an equal voice. Unfortunately we operate in a plutocracy (the US). My voice doesn't count as much as the board members of "insert utility company here." In order to get around this issue, the US Government along with State Governments should create a totally separate network infrastructure. We could actually catch up to most other countries, create jobs, rid ourselves of the aging copper base, and actually have a network clearly subject to the government and to the people. Then we could have a public regulatory agency lease lines to private operators to do what they want to do with their own little network on the greater public network. As it stands now we have a hodgepodge of backbone providers (funded by the US government not for the people but for the good of the lobbyists) that allow us peasants to use their network as they see fit (think telcos, cellphones, you name any communication device here...). How about that idea Slashdot? Ideally it'd be nice if the board/regulatory agency that would oversee the Internet 3, were made up of local citizens from each state with strict term limits and strict operating parameters, because I'm not a fan of ye olde Uncle Sam running it with his lobbyist sons and daughters.
This law professor is profoundly ignorant. NO ONE 'owns' the Internet. There is no domain to grab via 'eminent domain'.
Lest people forget, or for newbies, the 'Internet' was born as ARPANET, which was invented and created by the government. It was never given away. There are no plots within it owned by anyone. There is nothing to take over. It is owned by the citizens, who own the government. Any concepts to the contrary are inventions of The Corporate Oligarchy. Nice try 'professor'.
http://en.wikipedia.org/wiki/ARPANET
You don't have customers paying for access to your visitors in your bathroom. (That sounds a bit more weird than I intended...)
It's about ISPs wanting to charge the content providers for access to their customers, who already pay for access to the content providers. If you want a good analogy, think gas stations charging car manufacturers for not refusing to sell gas to car owners. I have no idea if it would be legal to put up "We don't sell to Chevy owners" signs.
If you have been allocated the "rights" to some segment of the public airwaves, that doesn't mean you can jam some other segments just because you want to stifle access with your competitors. The same should apply to wired access.
That is what this issue is about,the wired has to have access to public takings right of ways to build out their infrastructure..which means they are NOT all private business, so no one can claim they have all the property rights here, cable or twisted pair telco. Can an ISP A restrict or slow down-jam-the access to website/service/whatever B, just because they think they can "make more money"? Is it really a taking by the government when they are told they can't do that, jam some third party service or insist you buy their version of it (say like skype over the telco version of voip), or slow it down so much it becomes ridiculous? Just because they technically can, should they be allowed?
I say no, they agreed to be regulated when they assumed temporary control over a lot of other people's private property, all these poles with wires, all the underground runs, etc. Those companies have paid nothing for that access, and the private people never got paid back a nickle for it either.
But now that they have it, they want to be able to restrict the public's access as they see fit to improve their bottom line. Nuts. Ain't fair at all.
If they want to still do that, swell, let them *first* negotiate with every single real owner of the property where their lines cross, once they really "own" all that, then maybe, until then, *absolutely not*. The government-we the peeps-need to regulate them and say "no jamming the competitors", wireless OR wired.
And we could sort this out faster if we made it a law that they had to choose-be a content provider, OR a carrier, one or the other, but not both.
The federal government has full authority to regulate any service that is sold by any party. So first all ISP's would have to stop charging for service to take advantage of this. Second, the federal government has full authority over anything that crosses state lines, so an ISP would have to prevent their now non-paying customers from accessing IP's outside of their state of residence to take advantage of this. Third, the federal government has full authority to regulate things that affect commerce of entities that do sell across state lines, so the ISP's would have to prevent their non-paying customers from connecting to businesses like newspapers, airlines, etc. that compete against entities across state lines. So if the ISP only allowed you to connect to blogs without advertising and other non-commercial entities within your state, they might be able to competently make this argument in court.
Now there are things that only the states have power to do, such as revoking the corporate charter of a company not complying with a regulation, or evicting them from their private property and state property easements, or taking their tangible assets without a court order. But the federal government will simply pass a law with crippling fines. Then they can take as much property as they want via the courts so long as it's value is less than the hundreds of trillions of dollars in fines the ISP racked up when defying the regulation.
Whew. So glad I'm not an ISP nor own any part of one. When they come for your stuff I'll be just as helpful.
So, with that analogy in mind, if the government required you to let anyone and everyone use your bathroom - i.e. physically occupy it - and the requirement was permanent - i.e. anyone can use your bathroom, forever - then it would be a taking.
Some municipalities do regulate which businesses (mostly food) must have public restrooms.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
Comment removed based on user account deletion
So are you saying that the switches owned and operated by an ISP are public property?
Remember, the Internet isn't just a series of tubes, it's also a series of valves. Many of those valves are in fact privately owned. My personal computer is one of those valves, as I have the power to close the valve that provides the Internet with access to the information I make available through that valve.
The heart of the problem is all the grey areas. Packets have to travel through so many different properties, that declaring them public OR private is not effective. These properties are both public AND private.
I go fishing a lot. Sometimes the places I want to fish are restricted not because the land I want to fish is private, but because for me to access those lands I have to cross over private land. Unless granted specific rights to access, I cannot simply walk across private land (or use the privately built road) to get to the public land behind it. Of course, there are many places like this where the private land owner grants access rights across their private land so that I may fish there.
If the landowner decided they want to reduce traffic on their private road, they can declare, "Only 20 cars per day will be granted access." It's their road. They bought it, they paid for it, they built it, they maintain it. If you don't want to cross private lands so that you may access public lands, you have the option of finding another route that only crosses public lands. Of course, there may or may not be a road there, not the problem of the private land owner.
Someone flopped a steamer in the gene pool.
You can't take something they never had in the first place. The internet has been neutral, by design, since inception. Removing neutrality is the "taking".
You have to be very careful how this is thought about. Yes, you may consider it private property, but under that analogy we are leasing that space. If this space is paid for, it is our right to do with it what we please. The ISP should not control how we use our leased space, as much as our landlords should not be able to tell us what religion to practice in our leased apartments.
Some municipalities do regulate which businesses (mostly food) must have public restrooms.
Keep reading the rest of my post. Starting at the word "BUT".
As an attorney duly admitted to practice in the Courts of the State of New York as well as the Federal Eastern and Southern Districts of New York- I call bullshit. Without doing any research I can tell you that the standard for it to be a recompensible taking under eminent domain is that it has to reneder the property worthless. For example, rezoning your commercial property to less valuable residential zoning would not be a taking. you may be losing significant value from rezoning but it is not a taking. However if your property was rezoned to 'park or nature habitat only, development prohibited' then it could become a taking subject to compensation. The companies that this would benefit already get significant income from selling of bandwidth. That they cant gouge customers is tough shit and not a taking. JANNYAtty.
I dont do meaning of life questions.
More net neutrality FUD. Net neutrality is not regulation of the Internet, it is regulation of businesses that provide access to the Internet, in particular requirements that those businesses provide nondiscriminatory access.
As for your lovely examples of competition for TV and Internet...what has it gotten you? In my home town (a major urban area with millions of residents), the competition between cable TV companies has not resulted in better service; in fact, the service is absolutely terrible, and has been getting worse during a period of increasing competition. You are still required to use particular equipment to access the cable TV system (none of the providers, last I checked, allowed any "unauthorized" equipment). During prime time, there are frequently outages, particularly on "On Demand" channels. At least once in my memory, a disagreement between one of the cable providers and a particular channel resulted in the channel becoming unavailable for that provider's subscribers.
That is exactly the sort of situation that net neutrality regulations are designed to protect consumers from. There is no technical reason why ISPs can't dictate which equipment you use to access the Internet, or block access to particular hosts who fail to pay up, or even block access to particular services (imagine if your ISP said that you need to pay extra to use SSH -- much in the same way that many cell phone companies demand an extra fee to allow you to send a fax over their network). "The market will solve it" just does not seem very plausible, considering how well "the market" has done in providing decent cable and cellular service.
Palm trees and 8
Some people will say anything to make extortion sound like capitalism. I paid for my internet access, Google paid for their internet access, but unless you want something to happen to your email, somebodies going to have to pay the access providers again, or maybe your packets might get lost.
Does Net Neutrality Violate the Fifth Amendment?
The answer is no!
Actually, violation of Net Neutrality is far more likely to violate the First Amendment. As such, huge the potential to violate the First Amendment clearly trumps any weak possibility for it to violate the Fifth Amendment.
Next.
This is a create example of just because its published research doesn't mean it has any validity.
The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" .
-- from Wikipedia
I think the government forced me to allow the telco to run wires across MY property. Oh wait, not only that, they gave the telco most of the land for the original deployment of the phone system. So eminent domain does apply here - the network was originally built for "public use" and arbitrary restrictions should not be allowed.
BUT, here's where he seems to be wrong (without having read the paper)... an ISP isn't like your backyard or your private residence. They're engaged in commerce, and under the Commerce Clause, the Federal government has the power to regulate them. The case on point would be Heart of Atlanta Motel v. US [wikipedia.org], which said that the interstate commerce clause allows the government to establish regulations that prevent discrimination in commerce.
Right. This guy is trying to pull a fast one, and everybody gets bogged down in the details, but there's also this: if his interpretation is legit, it should exist within the current legal landscape at large. Presumably, he's not trying to prove that the vast majority of regulations currently on the books are illegal. Given that, how is the proposed law substantially different than existing regulations that have extremely similar effects? His argument does not seem unique to net neutrality, and seems to apply to a whole lot of things in ways that the Congress and Court don't seem to agree.
Of course, since the guy's a professor, he's probably just trying to stir the pot, and seems to have done so successfully.
Does the right to exclude apply to people, businesses or both? If I own a business can I decide whom I will or will not serve? Not counting "No Shoes, No Shirt, No Service". I think not.
ISPs are Common Carriers and subject to regulation.
Fun to see what lawyers will do when paid hourly by corporations with deep pockets. Except that it's consumers' money in those pockets.
The hard fact is that most municipalities have contracted with a single ISP to provide service. That ISP is, therefore, a local de facto monopoly. They should be regulated accordingly.
This reminds me of that time when my toy company came out with a Teddy Bear that had spring loaded knives under the fur activated whenever a child decided to hug it.
Well, apparently it violated some kind of regulation, and in the court they said I was mad when I argued that their taking violated the Fifth Amendment.
Well, I'll show those who called me mad... I'll show them all... Mwahahaha...
"MIT betrayed all of its basic principles."
Somewhere along the line, "open markets" became an end unto themselves, mostly through deregulation, instead of a means to create better competition.
Aha - except watch the shell game we played there. Does an "open" market mean a "free" market, and does "free" mean "deregulated" or "anarchic"? I would say no, absolutely not.
To me, the truest definition of a free market, and the best sort of market, is one in which supply can meet demand with the fewest barriers possible. That's the motivation of Sherman - to prevent a monopoly or oligopoly from erecting barriers that would prevent competitors from creating supply to meet demand.
So, what does my definition of a free market mean?
Does that mean an anarchic market where people can do anything they want, including dirty tricks to artificially reduce supply? Absolutely not.
Would it allow mega-mergers, such that there are few competitors, thereby breaking the equilibrium theory of a free market? Nope.
Would it deregulate to the hilt, creating problems in companies' abilities to meet consumer demand? Not a chance.
So, from that standpoint, where would a truly free market come down in favor of net neutrality? Well, if we had a free market, the answer would be against - with a caveat. That caveat assumes that we have so many competitors, and strong regulation, and strong Sherman protection, that companies who tried to implement a non-neutral net would get run out of business because that internet would suck.
However, we don't have that. There are few telcos, and they're in bed with media companies. As such, the freest market is actually created by facilitating net neutrality, which provides the market freedom required for supply and demand to meet.
The notion of a free market gets kicked around on left-leaning sites, largely because the concept is bastardized by the right. But if we reconsider what is meant by a free market - doing whatever is necessary to reduce the barriers to a free-flow of supply and demand - we might find that we rather like it.
They are taking from public domain, after all...
Another point to make is that of who owns the data in transmission. There are a lot of instances of ownership on the Internet. For one to say, "nobody owns the Internet" is just plain silly. Of course people own parts of it.
I'm against traffic shaping as much as the next /.er, but I don't think everything about the Internet is inherently public. Sure, transmission lines, repeaters, etc are placed in public easements acquired through eminent domain, but those lands' acquisition rights are separate from the transmission rights of bits.
Someone flopped a steamer in the gene pool.
Were are the cables the internet is carried accross? Oh, can PRIVATE landowners now DENY access to public companies wanting to dig up their land? How about cable companies pay FULL rent on EVERY square meter of ground they got cables in? How about they pay for disruption to traffic?
No, the cable companies will not open this can of worms if they are smart.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
My 1st thought was civil rights law! Net Neutrality is not just about commerce its also about civil rights! Perhaps they could let comcast screw amazon.com or slashdot.org but be restricted on messing with free speech related websites. Who knows what this corrupt SC could come up with - you know that comcast has nothing to lose fighting it all the way and even cheating as much as possible (like paying people to fill up public forums.)
Democracy Now! - uncensored, anti-establishment news
No... Speed limits on the highways would be, at best, an analogy to some sort of governmental-imposed bandwidth regulation on the interwebs.
Which is what net neutrality eccompasses; that you don't discriminate using speed (including blocking sites by cutting speed to zero).
They're engaged in commerce, and under the Commerce Clause, the Federal government has the power to regulate them.
Which is an additional (and better as well) point.
Free Martian Whores!
Even if it were taking place entirely on private property (which it isn't: their lines run across public land, and they are already giving up some rights to control that property due to that fact), they still must not interfere with the individual's right to contract. The exchange of information via IP is a voluntary exchange between two legal entities, and the exchange amounts to a contractual relationship (ie, the initial request is a unilateral contract). For an ISP to do any more than simply route that exchange is tortious interference of contract.
Even though the ISP might block the relationship before it exists (ie, preemptive network bias such as forging packets or simply dropping the initial request packets), it will still fit the terms. The contract is unilateral, so in the initiator's view the contract exists unless the receiving party fails to act of their own accord (letting the request time out, for example) or explicitly declines (sending a HTTP status code in the 400 range, for example).
— Wikipedia: Tortious interference
-HobophobE
Nothing laughs forever.
Horseshit. The eminent domain was them taking the access to my land. The eminent domain was giving that and all the infrastructure and giving it to the ISPs (and 10Bil in handouts to improve it).
Let me get this straight. Both Verizon and Comcast have lines running across the back of my property in the right of way. Since obtaining the rights to this passage they have each added massive amounts of programming which I have never been compensated for. Looks like it is time to started adding up a bill for each of them. Also, since they have no cable neutrality, I am claiming the right to continuous deep inspection of their programming to make sure they stick to their original agreements for use of my property.
A proper analogy would be if you charged visitors to your house for access to your bathroom.
How is this a "proper" analogy? It's something that nobody would consider doing so there are no regulations in effect. Nor would it be something under the purview of the federal government since it's clearly not interstate commerce (unlike the internet).
The point is that the government can and do make laws that affect behaviour in private property without breaching the fifth amendment.
No, the issue is NOT that ISP wants to offer different levels of service at different prices. The issue is that ISPs want to be able to specifically discriminate by the CONTENT of the data you are transferring, rather than how much of it or at what time of day or how quickly.
A far better analogy would be an electrical company that charges you differently depending on the manufacturer of the toaster you have plugged in. It's the same power consumption and the same bread, but unless the electricity is being used in an "approved appliance sold by a subsidiary of megacorp", you must pay extra per watt.
Or to use your bathroom example, you have to pay extra to use the bathroom if you ate food from Wendys rather than food from Burger Kind.
What everyone isn't noticing is that this is about abuse of a (in some cases government granted) monopoly. They are saying "If you want to have access to my monopoly system, then you must pay me more for it". Abuse, abuse, abuse.
Anything else in this argument is just pudding.
The cable in my area runs across the front of our property. The only place it goes under public roads is when it crosses an intersection.
The hilarious thing is that you get it so wrong and yet your analogy is still so right.
It's about an ISP wanting to charge more for "premium" access and if you don't pay, they bump you down a tier or limit your access.
I already pay more for faster internet, and these days even the farmers don't bother to use the "tiered internet" strawman as a scarecrow. These days trying to convince everyone that the libruls are gonna censor yer intarwebs is all the rage, usually using some logic so twisted that it's hard to understand how these people can walk straight, typically involving pretending that the ISP is some kind of "publisher".
A proper analogy would be if you charged visitors to your house for access to your bathroom.
Network neutrality isn't about the ISP wanting to charge me more for premium access, it's about the ISP wanting to charge Amazon (ie, my visitor) for access, to me (which I guess makes me the bathroom).
Businesses are not people. Businesses do not have the rights of people. Businesses are licensed. Businesses are regulated. Telecommunications businesses massively so. Net Neutrality is not an occupation of private property, it is a requirement that access to the freeways of knowledge not be controlled by anyone other than the people. The public paid a trillion dollars to develop the technology that allows the freeway to exist, and any business making a profit from that owes the public at least the courtesy of unfettered access to any website regardless of that website's business affiliations.
Nor would it be something under the purview of the federal government since it's clearly not interstate commerce (unlike the internet). The point is that the government can and do make laws that affect behaviour in private property without breaching the fifth amendment.
What does interstate commerce have to do with anything? And where do you get this "point"?
Oh, perhaps you read the rest of my post.
This is more than a stretch. Fifth Amendment takings might apply to the taking of the actual communications network, but it would certainly not apply to the actual communication on the network.
Even so, it might be argued that regulating the communication itself limits the ability of a carrier to enjoy its physical property. Nevertheless, the Fifth Amendment still may not apply.
Communication industries are highly-regulated industries that have developed their networks on the backs of local and multi-state monopolies. The restrictions placed on how, where, and when networks can be built limit the applicability of the Fifth Amendment in many ways.
I think Daniel Lyons is stretching a bit here in order to write an interesting article that challenges our conception of property, the Fifth Amendment, and net neutrality. I do not think the practical application of this theory exists in law or practicality, however.
I would think that since the cable company's,wireless company's have excepted government money"Our Money" to build there networks it doesn't fully belong to them?? I remember once there was this county camping park for Montgomery county residents and for years the residents had first shot at camping and at a cheaper price as well. But they made a mistake by excepting US government money for fixing the roads since they excepted the money then then had to allow anyone access to the park and at the same prices. Everyone benefits from the road repair wouldn't this be the same thing Cable company's excepted government money to build cable lines,shouldn't everyone be allowed the same access then??
Jack of all trades,master of none
The whole thing is based in a inane Rand Paul-esque argument, that saying the government can impose conditions on how you offer your good or service to the public qualifies as a regulatory 'taking'.
And yes, I use the term Rand Paul-esque advisedly - this not a slipperly slope argument, but a statement that imposing quality controls on medicine, or forcing a phone service to allow any phone to be attached, or forcing a business to serve people regardless of gender/race, are all regulatory 'taking'.
Daniel Lyons is an Assistant Professor at Boston College acting as a stalking horse for the Competitive Enterprise Institute. God save us from idiot libertarians and Ayn Rand wannabees.
Pug
An Invisible Entity of Vast Power whose existence must be taken on faith alone: Liberal Media
That is a terrible argument. If this is true, then the FCC should be completely abolished.
The public internet is a network that should be regulated just as the telephone network is regulated. It represents a critical global communications infrastructure. The right to participate in that network should also come with rules of conduct not only by the users but by the businesses that exist on and through the internet.
To simply say that regulation tramples on an individual operator's "right to exclude" fails in a variety of ways. There are even rules about the "right to exclude black people" in various places such as restaurants and bars and even water fountains. Does that ALSO run afoul of the constitution? If people were operating individual networks like they did when AOL first started and before it was connected to the internet, that would be one thing. But when connecting with, participating and extending the internet across one's own infrastructure absolutely need rules of behavior akin to the use of radio frequencies for various activities. Without these rules, we will find huge amounts of trampling upon one another.
Governmental powers are subject to restrictions on those powers, not the other way around. Thus, the interstate commerce clause is subject to the Fifth Amendment's restriction that "nor shall private property be taken for public use, without just compensation." From this language, the Supreme Court draws the traditional requirement that the government must compensate a land owner when the government imposes a regulation that results in "permanent, physical occupation" of private property.
However, the applicability of this rule has not, as far as I know, been considered in the context of net neutrality. Is the occupation here "physical" in the same sense as the one contemplated by the old rule? Professor Lyons essentially concludes that the answer is yes, but offers sparse legal authority to support that conclusion. He relies extensively on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419. However, this case is from 1982 and, like previous cases, itself involved the actual installation of facilities on private land. The best language Professor Lyons can muster from this opinion is merely from Justice Blackmun's dissenting, not majority, opinion, in which Justice Blackmun concludes that the majority's opinion, when literally read, must include compelled access to electronic networks.
However, Justice Blackmun's dissenting language 28 years ago certainly doesn't bind the Supreme Court today to agree with that dissenting language or to read the Loretto opinion so literally as Blackmun suggests. While there are similarities between the two contexts, any reasonable person can plainly see that there are also a number of significant differences. To conclude that the Supreme Court will simply apply the old rule in a blanket manner and not modify it for application in a different context is frankly either highly naive or simply disingenuous. Loretto is certainly not binding precedent in this context, and frankly it is not particularly persuasive authority, either, given how different the contexts are.
I remember the bad old days of telephony before AT&T was able to charge Montgomery Wards for a percentage of the sales made over the phone. It was so incredibly unfair that Wards could profit off of their AT&T service without giving back their fair share of the profits! They actually used to think that if the caller paid their phone bill, and if Wards paid their phone bill, then they should be able to call each other without including AT&T in the transaction. It was madness, I tell you! Madness!
Freakin' morons. I think it's past time that the FCC passed common carrier regulations and told the telcos to STFU and get back to work.
Dewey, what part of this looks like authorities should be involved?
This is a reasonable argument except for one thing. Large Internet access providers are granted special privileges by virtue of being de facto common carriers. In most states, for example, if you want rights to deploy your communication cables across public rights of way, you need a "Certificate of Public Convenience and Necessity".
Without such a certificate, you are at the mercy of individual public and private land owners. So if the large Internet access providers do not want to be de facto common carriers any more, state governments could just refuse to renew the providers CPCNs, on the grounds that they are not acting like common carriers they promised to be when the the certificates were granted (at least in the case of telephone companies). City governments could refuse to renew cable provider franchise agreements on similar grounds. Another option is to start taxing utility easements with an exemption for common carriers, on the grounds that the non-common carriers are not operating in the public interest.
If that is insufficient, local municipalities could build out their own provider neutral distribution networks similar to UTOPIA. That is the certain outcome of the large IAPs pushing the private property argument too far. Irrelevance and death.
It would mean the government lacked the authority to regulate almost ANY kind of activity. There's a meme on Slashdot that people ought to be able to do anything they want with property they own, that pops up in copyright stories. This guy has essentially made the same argument, only in a different context. They're both mistaken for the same reason.
The government puts all kinds of restrictions on what people can do with property they own, most of which aren't controvertial at all. There are a handful of civilian-legal miniguns in the US (which predate the ban passed in the '80's). Nobody is going to argue that the Fifth Amendment prevents the government from "taking" your right to use that minigun to shoot up a mall, or rob a bank. A few years ago, someone found out how to make devices that could manipulate traffic signals by impersonating emergency vehicles; they were banned. Was that an unconstitutional "taking" of people's rights to be assholes in traffic?
As for Net Neutrality, the article mentions at the end a regulatory regime - Title II - that has antidicrimination clauses in it. His argument is that applying them to the Internet is an unconstitutional taking - but that would mean the already-existing industries under Title II regulation could argue the same for themselves. That's the telecommunications industry.
And as far as I know, it's already the law that the phone companies can't play these kind of games. Businesses can't pay the phone company to give themselves better-quality connections to customers (or worse, pay the phone company to give rivals lousy ones). But this lawyer's argument seems to imply that this regulation is unconstitutional whenever applied, to any industry. That sounds very similar to "freedom of contract" interpretations of the Constitution from the early 1900's to 1937 under which the Supreme Court struck down child labor laws and limits on the number of hours per work week. That idea was rejected seventy years ago.
The case cited in the article deals with cable runs through an apartment in New York, in 1982.
One wonders if a case might be made that the internet isn't "new territory", freeing it to be handled in much the same way that the American continent was handled in regards to Native Americans, thereby sidestepping this ruling and handing rights over to the settlers.
Some days it's just not worth
chewing through my restraints.
Wires are public property when public funds subsidize them, or legislatively mandated customer fees provide reimbursement to the telecom companies for building FTTH.
I don't see how that follows. If the government gives money to the telcos to lay wires, ownership depends on the agreement between gov't and telco. It may be that the gov't retained some ownership or control over the wires, but maybe not. It all simply depends on what was decided at the time (and I don't know about that).
If I give you money to purchase a car (slashdot analogy), then I don't own that car unless we decided so at the time. I can't later restrict your use of that car unless this was a precondition of the subsidy.
Phiwum's law: anyone that names an obvious law after himself and then puts it in his own sig is just pathetic.
No... Speed limits on the highways would be, at best, an analogy to some sort of governmental-imposed bandwidth regulation on the interwebs.
Not even that; speed limits are legal only because government owns the roads. You can drive as fast as you'd like on a private road. Net neutrality should only apply to networks where government has provided some sort of right of way or grant of monopoly (which, unfortunately, is the case in many telephony and cable networks in the US, even after "deregulation").
First off the guy is clearly incorrect since this theory of his would invalidate virtually all regulation of say railways or power lines or gas lines.
More importantly, the guy is wrong because the property in question, not the cables/towers themselves but rather the right-of-way and the licensed spectrum that does not truly belong to those cable/telco companies. Those right-of-ways along public roads and along people's property underground are takings in and of themselves. The cable/telco cannot claim that regulating or placing conditions on the takings that they benefit from are themselves takings.
IAAL. The Fifth Amendment requires compensation for private property taken for public use. Internet bandwidth is not private property. It belongs to the government and is licensed out. The government is free to limit that license by, for example, requiring large licensees to carry traffic for smaller entities that can't afford to bid on the bandwidth. Further, the Fifth Amendment position has been rejected by the courts, which have routinely upheld severe zoning restrictions that decrease the value of private property.
It is prima facie obvious that if ISPs control the data that goes over their pipes in *any way* based on the content then they are at least partially liable for the content of that data, and should be exposed to lawsuits over it.
They seem to want to get all the benefits of being a common carrier without suffering any of the logically necessary consequences of that.
We shouldn't *need* to enact net neutrality. The ISPs should be rushing to insist on it. You just have to lay out the liability in a form everyone can understand.
Fair enough critique. And I think it is dereliction of duty if the government officials that negotiated the contracts allowed for unlimited private ownership.
But I imagine most contracts are something like - the city/county/state allows access to public right of way and x year monopoly franchise agreement for providing y service to the community in exchange for the company building out and maintaining y service.
In such a case the ownership of the actual "pipe" might be private (at least for y years), but that does not negate the fact that the contract is for a service that likely doesn't specifically allow for selective degradation, that was built with a public subsidy. It isn't unreasonable the public demands performance.
If these telcos don't want to provide the undegraded service, the community should insist they are requesting a contract renegotiation. A new RFS should be performed with specific net neutrality language, and if another company wins, that new company should be allowed to hang competing infrastructure in the public right of way also. The original company can continue to sell their service, but they should not be allowed to materially reduce the cost of their service as to inhibit competition by lowering the expected revenue and bankrupting the incoming company.
Another reason is the common carrier rule: anyone who operates a public conveyance must take all comers who can pay within the service area (and are not a threat to your business); if you are allowed to operate a taxicab company you can't refuse to accept passengers who are white or indian, black or Jewish. You can't also refuse to pick up an employee or the owner of a competitor.
Now, it might be arguable these are private companies who are operating private networks, the only problem being that a non-customer or even competitor has no power to make a private company give access to their facilities if the provider decides not to do so; consider what it took to allow Microsoft to permit competitive web browsers as part of the system (but you still at least have the option to install a different browser if you want). If an ISP decides you can't run certain traffic - P2P networks or competitive video feeds for example - you probably can't. Maybe if there is enough outrage the ISP will back down, but maybe they won't. Plus in some cases there is either no choice or the only choice is a cable company or phone company, and if one provides really bad service and the other restricts your choice (traffic throttling) or refuses you ability outright, you may be completely denied access.
It's one thing for a company deciding not to carry something on its network for its own account, and it's another for them to decide whether you can obtain access to someone else's network and leaving you landlocked and either unable to reach it or restricted in the ability to access it.
It's all about money, here. People are using more bandwidth to do more things, and they can't raise prices on a linear basis like they used to be able to do, e.g. if you take a 40-tier of TV channels it used to be that it cost twice as much as the 20-tier. Well, they can't do the same thing with Internet access, a 100 mb connection isn't going to be able to be priced at anything near 10x a 10mb connection. Which it shouldn't, the increase in cost does justify a somewhat higher price until cost recoupment of the more expensive equipment to increase capacity has occurred, but it doesn't justify a straight-line increase. But that is the way data and voice services were sold back in the 20th Century.
It used to be that a T1, (1.5 megabits/sec.) which I think was the equivalent of 24 voice-grade circuits (56 kilobits/sec each), and cost 24 times as much as a voice-grade circuit. Now, basically, for 24x a voice-grade circuit (call a voice circuit about $25, so that's about $600 a month), you can get not 24 times as much, but 10,000 times as much, or 1/2 gigabit/second. (Hurricane Electric, for example, will sell you an interconnect at their colocation facility for a grand a month for 1 gigabit internet).
The Internet providers are compaining they don't want '1930s regulatory controls' placed over the Internet, however they do want to be able to charge that way, by the bit, practically. They want to be able to restrict how you can use the Internet unless someone pays more for 'expedited service' or 'using our pipes to reach our customers' or 'using more of our bandwidth than we think they should unless they pay more' (even though it's within the customer's service limits) It's hypocracy, pure and simple.
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
In the US, I understand both sender and receiver are charged for calls and texts on mobiles? So maybe there's a precedent for your telecoms providers double dipping.
Mobile phone service in the U.S. is moving toward unlimited usage per month and you can buy it that way. But in the case of cell service where you're charged for incoming and outgoing calls, you're charged the same rate no matter where in the world the call came from and outgoing calls anywhere in the U.S. (and possibly Canada) are charged at the same rate, whether it's local or long distance the rate is the same. I'm not charged extra to call a pizza place over calling an office nor is the pizza place charged extra because the pizza place sells something as part of the call and a call to an office doesn't. All traffic is treated the same and all traffic is charged that way, the quality or reason for the call doesn't affect its pricing.
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
If the pipes are the company's property then they are responsible for the content on it and should be held responsible for anything illegal found on their property.
But more importantly their "property" runs all over other people's property in part thanks to the government's right of way. If they want compensation for being made to open their pipes then they should start paying up for laying their property on other people's property and the government should charge them for using their right of way.
It's like some cell companies having really long-term contracts to lock customers in, with a high termination fee, then proposing to reduce the level of service, decrease the amount or quantity of services or raise prices despite the customer having a contract. But if the customer tries to change their contract or get out of it ...
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
I think that this is the same Daniel Lyons featured on CONSERVATIVE/LIBERTARIAN PUBLIC INTEREST LAW discussing his work for the New England Legal Foundation and the Anthony Palazzolo case on 18 acres on Winnapaug Pond in Rhode Island, which Palazzolo was prohibited from developing due to local wetlands protections regulations. In other words this is a fierce anti-regulation guy.
Unless granted specific rights to access, I cannot simply walk across private land (or use the privately built road) to get to the public land behind it. Of course, there are many places like this where the private land owner grants access rights across their private land so that I may fish there.
And there are many places where the land-owner cannot restrict your right of access to the public lands, though they can expect you to pay for any conduct of yours which causes problems for their property.
But simply walking across it? Not a problem.
Now going on with your private road, and only 20 cars per day, well, there are balances in that. Certainly cars do cause road wear, and trucks cause even more, but that's not true for data. Bits are bits. Should you treat bits differently?
Maybe not.
What does interstate commerce have to do with anything?
It is something that is in the purview of the US government. It is something that relates to the internet. We're talking about government regulation of the internet.
And where do you get this "point"?
It seemed obvious from reading the comment that this is an example of a law that affects private property as well as public property to illustrate that laws may do this.
Oh, perhaps you read the rest of my post.
The rest of it I agree with. I just thought it was a silly analogy.
i'd be for it if it wasn't double-tiered. either split it up by speed or by amount of data used, but never, ever both.
This kind of legal reasoning is incompatible with the ISP or telco being a carrier. If the 5th applies to them then they are a content producer and liable - it is in Big Telecomms interest to be seen as carriers only, yet they lobby against their own interest.
What is often left out of the discussion of net neutrality is the concept of "content neutrality." Throttling traffic and discrimination is only one half of the issue. Big media has us diverted here hoping that we will miss their home run. Look at ESPN3 (formerly ESPN360). Disney is extorting ISPs forcing them to pay per subscriber for access to their content. There is no a-la-carte. It is all or none. Big media wants to corner ISPs and make the 'Net more like cable.
The bathroom analogy is horrible. See the big thing here is that you own the medium (house) and the end (bathroom), this is not the way the internet works.
Your ISP doesn't own the servers hosting whatever services you want.
Legally it'd be closer to this case. Say you pay to use an interstate highway, and the amount you pay depends on how much you use (depending on weigth you carry and distance you travel). Now they want to charge extra based on why you are travelling.
This example, though, isn't good enought. See the entity charging would have to own a very small part of the highway, containing only the entrance. Imagine that the owner had a deal with BK to make it cheaper for people going to BK than people going to McDonalds.
Still, this like any comparison doesn't really work.
All we can conclude is that any metaphor trying to explain the internet will only work with very specific conditions on a very specific situation, and otherwise you could be saying it's a series of tubes.
The problem with net neutrality (and the weakness in using the 5th amendment) is that the ISP don't own the internet, or barely anything in it. They only "own" a few kilometers of cable, switches and routers, and then connect to someone else. They've been given a unfair position where they can abuse power, and trump over rights of american people. Contrary to what most people say, citizens' rights still overrule corporations'. This is why the goverment regulates in the way that least interferes: demand net neutrality.
This isn't the goverment interfering with how a private entity works on it's private space, "taking" the territory away from them. This is the goverment prohibiting an private entity from defining how other private entities should work on their own private space, or charging them special fees.
Trouble with this sort of thing is that the analogy gets so contrived and hypothetical that you might as well just ask about the legal, moral and practical applications of net neutrality on the internet.
They also want you to pay ISPs to post your resume, and they want to charge JimBob's Ribshack for "access to clients". Without net neutrality, the smaller players won't be able to afford to play, and the Internet will become a place in which only large corporations can afford to have web sites.
Eminent domain relates to compensation for seizure of property, there is no seizure. Regulating usage of resources does not constitute seizure of property, especially of a public utility (which in the city that I live is AT&T who owns all of the DSL and fiber and leases it to other companies).