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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 violates one of the grammar amendments.
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?
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.
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
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.
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.
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.
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.
... or regulations on utilities like electricity and water. An even better precedent is telephone communication.
The internet is apparently SO different that we have to replace 100 years of precedent
They retain the right to exclude... they don't have to use their circuits or equipment for internet connectivity. They don't have to sell any service at all to any customer, let-alone internet services.
The internet is not the property of an isP. There is no "right to exclude" individual internet services and still call it internet.
It is more of a "truth in advertising thing" If you advertise an internet connection, then provide full internet connectivity and don't tamper with disable or break specific internet services, otherwise you are lying.
This is like saying the FCC rules that regulate phone companies, and prevent them from participating in discriminatory practices such as blocking calls to competitors deprive telcos of their property rights.
Or that the regulations requiring telcos to let you plug in a Carter Fone, computer modem, or other equipment not provided by the telco, deprive them of their 5th amendment rights.
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
It's a cute theory but if it were true then the Federal government would lack the authority to regulate virtually all business activity from, "You can't tell me I can't build a trash dump here" to "You can't tell me I'm not allowed to sell this grade-B beef as hamburgers." The Feds obviously don't lack that authority (at least where it pertains to interstate commerce), hence the theory is wrong.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
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.
I'm pretty sure that the content-providers, like Google, still have to pay their ISP for connectivity to the internet on their end. This is even more transparent greed than you imply. It's not just charging the sender and receiver. Its charging the sender and receiver and then the sender again.
I pay my ISP for access to the internet. JimBob's RibShack pays its ISP for access to the internet. Google pays its ISP for access to the internet.
I have a homepage where people can see my resume allowing me to get work that makes 5 figures a year. JimBob's RibShack has a website with their menu and phone number, helping them make 6 or 7 figures a year. Google has a website that they sell ad revenue to and it makes something like 11 figures per year.
Suddenly my ISP and JimBob's ISP both want Google to pay them extra money, cause...hey...Google's making money.