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.'"

Comments

Not all private

[AJWM]

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.

Re:Not all private

[Moryath]

Sigh back. Anonymous cowards who don't know the first thing about law should go away.

Government: We're taking your farm under the commerce clause.
Farmer: But the fifth amendment!
Government: Commerce clause trumps. Your farm affects interstate commerce. You lose, haha!

Obviously you didn't see the eminent-domain cases a few years back where the Supreme Court ruled, under "interstate commerce", that a state taking people's homes away to build a "business park" for a stripmall and factory in order enlarge their tax base was legit thanks to the IC clause.

According to current SC precedents, just about NOTHING trumps the IC Clause.

Re:Not all private

[trentblase]

And by "such activities", I mean "such regulations/laws".

And to the ISPs, I say... did the Diner Neutrality Act (aka Title VII) violate the 5th Amendment because it forced Denny's to let black people traipse across their private property and order chili fries? No, it did not.

taxpayers

[Anonymous Coward]

What if taxpayer money was used to pay for all or part of the privately owned infrastructure?

Maybe for wireless carriers.

[LWATCDR]

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.

Just nationalize the copper then

[FreeUser]

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.

Well, that was stupid.

[chaboud]

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.

Standard Political Boilerplate

[Walter Wart]

According to Conservative/Libtardian dogma ANY regulation of any sort is a government "taking".

"Private" is different, when commerce is involved

[Theaetetus]

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.

He's a Troll

[Wannabe Code Monkey]

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.

Re:The title

[postbigbang]

You could look at this conversely. Telcos and ISPs are used to being common carriers for transport of other calls, where costs are shared through agreements, meaning SS7 interchange, and so on-- at prices that they're free to gouge (or not).

The Internet, however, wasn't built on this model at all, and the underlying transports are to give the maximum available throughput at all times, 24/7. Therefore, any protocol throttling is both a violation of the presumed full share of available bandwidth, and also potentially a threat to free speech, and right to assemble. Further, the fifth amendment and due process also mean that if I'm robbed of my bandwidth by protocol throttling, then I want compensation from the robbers (are you listening, Comcast?).