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No, Net Neutrality Doesn't Violate the 5th Amendment
An anonymous reader writes "Yesterday we discussed the theory that net neutrality might violate the 5th Amendment's 'takings clause.' Over at TechDirt they've explained why the paper making that claim is mistaken. Part of it is due to a misunderstanding of the technology, such as when the author suggests that someone who puts up a server connected to the Internet is 'invading' a broadband provider's private network. And part of it is due to glossing over the fact that broadband networks all have involved massive government subsidies, in the form of rights of way access, local franchise/monopolies, and/or direct subsidies from governments. The paper pretends, instead, that broadband networks are 100% private."
And part of it is due to glossing over the fact that broadband networks all have involved massive government subsidies, in the form of rights of way access, local franchise/monopolies, and/or direct subsidies from governments. The paper pretends, instead, that broadband networks are 100% private
The best way to fix it is to... not give handouts, special privileges, or otherwise interfere with private enterprise. Every time the government does it, it fucks up the economy. Every. Single. Time.
Taxation is legalized theft, no more, no less.
I'm taking his Telecommunications Law class in the fall at BC Law...Looks like we'll have tons to talk about =) I really think TechDirt got this one right, but I haven't read his paper yet.
Boston College Law Professor Daniel Lyons points out how the Emancipation Proclamation violated the 5th Amendment.
His conclusion is right, but for all the wrong reasons...
Government subsidies are irrelevant. Could the government take back all those subsidies and right-of-ways? Problem not without compensation under the fifth amendment. Under current jurisprudence, the fifth amendment applies even to benefits provided by the government, including certain government jobs and welfare benefits.
His other argument is that there is no 'invasion' because 'these service providers chose to connect to the open internet allowing their users to request such content.' I'm not sure this is a very strong argument compared to Lyon's paper. The paper argued that net neutrality would essentially grant an easement over the ISP's wires and that this permanent invasion would be a taking under the fifth amendment. As far as I'm aware, Lyon's theory is novel in telecom regulation. I doubt the courts will accept it, but the techdirt article doesn't really have a strong argument against it either.
Under current jurisprudence, a regulatory taking is a taking under the fifth amendment. The relevant question is whether net neutrality would be a regulatory taking, and Techdirt does not address that question. I think net neutrality leaves the ISPs with enough room for profit that it would not be a regulatory taking. Whether I'm right or not, who knows...
IANAL and this is not legal advice.
If you had super powers, would you use them for good, or for awesome?
None of this commentary is likely to get anywhere but us. Other than beloved PJ, how many lawyers read Slashdot?
Someone needs to compile these arguments into a set of standard Amicus briefs for easy release to the relevant courts. Maybe a crowdsourced document forwarded to the ACLU under Creative Commons?
These lawyers and philosophers who pontificate about high tech issues without even the most basic understanding of how things work frequently just display their total ignorance.
This guy seems particularly, spectacularly, craptastically ignorant about how the Internet works and what the companies who support segments of the Internet actually do.
Hopefully folks with more knowledge will keep his ignorant opinions from having too much effect on the real world. In the real world this guy wouldn't want to display his ignorance and would have consulted with a technician before flaming in public.
The problem that will stymie people on this will be that the non-net-neutrality can take place on purely private property. It doesn't take place on the shared wires, or the rights of way. It takes place inside the routers wholly owned by the ISP/telco/cableco etc.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
I don't understand. What would that fix? Net neutrality? Seems to me that would break net neutrality.
As much as I hate to say it, it's true. The US simply doesn't have the same geographical constraints as Europe, Korea, or Scandinavia.
If we want decent broadband coverage, the government has to help. And PLEASE, PLEASE STOP THOSE GEOGRAPHICAL MONOPOLIES.
The Internet was created by Congress in the mid-eighties it is federal property. It's the opposite of a taking to require net neutrality, that is the premise on which the Internet was founded. At the time we fought back a GOP effort to have an all-private internet. Can anyone honestly argue that an all private internet would have grown as fast in the last 25 years as this one has? It would be completely fragmented to begin with, there would be tolls to overcome at every step of the way (pay a toll to leave your house (which we do) then another to reach the next ISP, then another and another....; this was honestly the model the GOP was pushing for). The entire internet would be as successful as Murdoch's pay-wall lamestream media is.
Oh yeah, no one in these discussions argues honestly: it's just appeal to religion, appeal to religion, appeal to religion...
The Federal government would still have broad authority to regulate it under the commerce clause:
]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.
The government is not seizing private property, merely regulating its use. Under the argument put forth by Daniel Lyons, everyone could sue the Feds anytime they felt any regulation or law somehow restricted the utility afforded by any item they own. It's an absurd argument, and does not withstand even a cursory examination for merit.
The problem with the author's position is that no one is asking for open access to the "Internet". They are asking for open access to networks that were privately funded, like Comcast's _access_ network. The government didn't help AT&T (or any of the component companies SBC, Bellsouth, etc) run copper lines to houses nor wire fiber to digital loop carriers in neighborhoods. The government was of course deeply involved in the initial build of the Internet and did in fact try to give it to the original AT&T (who declined because they didn't think it was commercially viable), but none of that infrastructure is in service nor has it been for a very long time. No one has a complaint about getting access to the Internet. Google and all of the other commercial entities asking for open access don't care about access to the core, they have that in spades already, what they want is a guarantee that people who built _access_ networks can't charge them for sending their content over those networks. I personally see merit on both sides of this position, but the author of the Techdirt article is dead wrong.
Uh, net neutrality means that my ISP needs to give packets from your server the same QoS as packets from your wealthier competitor, so that (for instance) eBay can't pay consumer ISPs to speed up its access and slow down or block Craigslist. What does this have to do with the "fairness doctrine"? What are you even talking about?
This most certainly deserves a good old NCIS Gibbs back-of-the-head slap.
People are using the same argument that "Government can't make me buy health insurance!" in order to kill the already-law health care reforms. But the pseudo-code looks like this.
function HealthCareTax($BoughtInsurance)
{
$HealthTax = $money;
If $BoughtInsurance == True {$HealthTax = 0;}
return $HealthTax;
}
The government most certainly has the power to tax, and also has the power to create tax deductions for those who qualify. So, this challenge is going to go nowhere fast.
Back to Net Neutrality, the way to implement this is a tax on what we consider unfair network activity. If they want to do what they want with their property, sure... but then they've got to pay a tax that makes that behavior less profitable or perhaps even unprofitable.
You don't need the government in order to have a monopoly or oligopoly that screws its customers. At the risk of stating the obvious, the government's role is often to lay down the rules of fair play: take our anti-trust laws, for example.
--
My first rule: be suspicious of hard and fast rules.
Obligatory comment about how the fifth amendment doesn't apply to my country, because it's vitally important for you to know.
The first time a large ISP tries to charge Google, Yahoo, Facebook, or some other large site money to allow their customers access to it and that same site says "No" and gets blocked/slowed down, their competitors (the ISP's, that is) are going to add that to their ad campaigns and you'll see their customers desert them in droves.
If AT&T told me I couldn't access Wikipedia, or Fark, or even Spankwire from their network because their operators weren't paying some stupid monthly charge, I'd cancel my iPhone contract and go get a droid on Verizon...and I work for AT&T! I can't imagine their other customers would be more loyal.
God invented whiskey so the Irish would not rule the world.
Apparently you and I have different ideas of what net-neutrality means. To me and I think most people (but I may be wrong) net-neutrality does not mean anything about specific servers it means neutrality in the routing and access of data. For example, if my ISP cut a deal with Microsoft to only allow Bing as a search engine and block or throttle my access to Google I would consider that a violation of net-neutrality. To extend your public road analogy, what if your city cut a deal with Daihatsu to only allow Daihatsu cars on the city streets, you can still shoot first, but your stuck with a Daihatsu in your garage as well.
It's character hasn't changed, you're just paranoid of the current administration while you were asleep during the last one.
Perhaps you could point me in the direction of the FCC declaring that "net neutrality" is going to affect the contents of your servers? Something from the the primary source, please, not grandstanding from a technologically-illiterate senator. It sounds like the FUD you're spreading makes you a "useful idiot" for the ISP duopoly.
You don't need the government in order to have a monopoly or oligopoly that screws its customers.
How do you create a monopoly which screws its customers without government preventing competitors from entering your market?
The more I hear of this the more I think we should declare the lot of them "Common Carriers"
"A common carrier holds itself out to provide service to the general public without discrimination (to meet the needs of the regulator's quasi judicial role of impartiality toward the public's interest) for the "public convenience and necessity". -- Cut some out -- in the United States the term may also refer to telecommunications providers and public utilities" -- Wikipedia
Stops the whole "Net Neutrality" issue and gives them some extended protections. If they want to say thay are not common carriers, I say we throw the lot of them in jail for transportation of child pornography. Every one of them provides it to there customers and seeing as they are not protected as a common carrier then they can be responsible for what they carry.
Just my 2 cents
take our anti-trust laws
Please? :)
But, seriously.
They "took" our anti-trust laws by politicizing them to the point that they rarely serve the interests of the public at large.
High costs of entry and collusion by the established players in the market. It's happened before, back in the pre-Theodore Roosevelt days when people thought your ideal system actually worked.
TFA says "The third parties are not proactively going onto anyone's network."
So you don't mind if the Cops listen to your IP traffic then, and prosecute you for data they find in it?
American corporations have been behaving like welfare queens for decades, and all the while pounding their chests and proclaiming their love of free enterprise. The disgusting part of the whole thing is that the business press is so used to kissing corporate heinie that they never call them on it.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
You prevent them yourselves by subsidizing prices in any competitors area until that competitor is out of business, then jack the prices up to outrageous levels until you've recovered your losses.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
Just realize what this is: This is the latest fishing attempt on trying to find an argument that gains traction with the "dumb masses" out there to make them all select something against our common good.
Net neutrality is so obviously the right way to go that they're having a hard time coming up with a real argument against. At this point all they can do is talk derisively about it on fox news, but even the smallest honest debate shows how obviously net neutrality needs to be mandated.
Call out bullshit on these arguments whenever you can to as wide an audience as you can! Only behind the "Citizen's United" supreme court decision (which screwed us all), I think this is the second most important free speech issue of our generation!
d
all language nazi's will burne in heil!
When I first heard of Net Neutrality, people had mockups of what they feared ISP's plans would eventually degenerate into. Things like "facebook+ebay+1GB other". It gave me the creeps back then, but what horrifies me is that in less than a year this has become reality to Australians.
Check this out: Optus iPhone plans. Click the "Plan Comparisons". Each one has a "Unlimited mobile access to Facebook, Twitter, LinkedIn, MySpace, eBay, foursquare" bonus.
The fine print says: "Unlimited use of these services within Australia only. Use of these services is separate and does not count towards your included “Mobile Internet Data Value.” These features are only available to you if your handset is compatible with the service. Optus Mobile Fair Go Policy applies..."
Keep in mind that Australia already has "tiered" internet pricing, because local bandwidth is practically free, while international bandwidth is very expensive. However, this is not what's happening here. None of those sites are hosted in Australia. It costs Optus no less to provide those to their customers than any other site. This is some sort of back-room deal.
If you host a website, or work for a company that does, welcome to second-class citizenship on the internet, unless you pony up the cash and make a deal with every two-bit ISP and Telco out there. Can't afford to do that? Tough.
Welcome to the free internet, where you are free to use all 6 Optus approved services.
>>>"among the several States"
Mom&Pop ISP is Smalltown USA doe not engage in commerce among the states. Therefore it cannot be regulated by Congress, but instead falls under the jurisdiction of the State Legislature..... in the same way that France or Germany or Poland regulate within their own borders, and it does not fall under the jurisdiction of the EU Parliament.
This is a simple and easy to understand concept. Intrastate commerce is jurisdiction of the Member State, not the general government. Why do so many liberals not seem able to grasp the plain English of this law? (Probably because they don't want to.)
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"On every question of construction carry ourselves back to the time when the Constitution was adopted [1787-89], recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
It would fix companies screwing their customers because the only options would be to serve their customers or lose money
Dude, come back to reality. This is so far from reality I can't believe that even an ideologue would say it. This market theory is premised on so many incorrect assumptions it's hard to find any truth in there at all.
Uh... By non-government actors preventing competitors from entering your market.
Is that a trick question or something? That happens every day of the week, even in today's smooth-running regulated markets.
By mergers and acquisition. By cartels, collusion and price-fixing.
One company buys another and then another. It's then able to create an "horizontal" monopoly buy buying companies in it's own supply and distribution chain.
Once it's big enough, there's a barrier to new competitors entering the arena because where are they going to get supplies? How are they going to distribute?
You create monopolies is when there is inadequate government regulation.
You are welcome on my lawn.
Mom&Pop ISP is Smalltown USA doe not engage in commerce among the states.
If they're providing access to a worldwide network and hosting websites accessed by people outside the state then yes they are.
Fear not! For TechDirt has declared that it doesn't violate the 5th amendment! Don't you see the Slashdot headline so conveniently worded by the anonymous submitter? It tells you, "No, Net Neutrality Doesn't Violate the 5th Amendment." So there. That means it's automatically been concluded for you, and you don't have to think about it. Whew!
Thanks, anonymous submitter.
First, there are plenty of precedents (some conceptually similar to this case) establishing that regulation very rarely constitutes taking. Second, the purported receipt of "subsidies" real or imagined by some carriers is completely irrelevant.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
>>>>>Mom&Pop ISP is Smalltown USA doe not engage in commerce among the states.
>>
>>If they're providing access to a worldwide network
Just because Farmer Jo is selling chickens in Smalltown USA, and her customer carries them into the next state, doesn't mean Farmer Jo is engaging in "commerce among the States". Her chicken business is still INTRAstate commerce. So said the US Supreme Court in the 1930s when they struck down one of FDR's New Deal laws. They ruled the farmer was not engaging in interstate commerce, just because his customers carried the chickens over state lines, and therefore he was not subject to US price-fixing regulations.
Likewise just because Mom&Pop ISP sells bits to a customer, and later passes those bits to the AT&T Megacorp which carries them over state lines, does not mean Mom & Pop engaged in interstate commerce. ATT is subject to Us Law, but Mom & Pop's business, customers, and wires are wholly-and-completely within the State..... in the same way that the EU operates. Member States regulate within their own borders without interference from the general government.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Has anybody else noticed that when you read an article about net neutrality you have to check to see who is using the term before you know which way they mean it? I think it was co-opted by telco's and cable companies with malice aforethought. Real PIA when ever I get in an argument about it. Have to stop the person and make them explain what they think net neutrality means before we can proceed.
They shouldn't force things like net neutrality on a private company. That said, they could still say something along the lines of "Abide by net neutrality or we will revoke your government allowed monopoly and allow other companies (and possibly even municipalities) to lay infrastructure and run ISPs in your areas". If we actually had a free market, a small ISP could tout their adherence to net neutrality as a selling point.
P.S.
And also if we followed your interpretation, then everything is interstate commerce and subject to the US government's regulation, so we might as well burn the State Legislatures to the ground. They would no longer be needed. PLUS we'd have to change our name from United States because there'd be no more sovereign states, just administrative districts. AKA provinces or colonies.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
You wrote "[I don't understand the commerce clause]."
I see you obtained your J.D. (obviously with a concentration on Constitutional law) from Costco - presumably on a Limbaugh scholarship for Republican geniuses (those exceptionally rare few with an IQ over 85).
The key point you seem to have missed in your weak-tea argument is that Internet Service Providers provide Internet connections. The Internet, if you did not know, is an international (and obviously global) telecommunication network. If you can't grasp why the Federal government has sole jurisdiction here, please re-read the quote from the commerce clause, until it sinks in.
Try Google for definitions of the words you don't understand, and stop listening to Rush Limbaugh on your magic talking box.
You're misreading the commerce clause and the case law surrounding it. This is not about a discrete physical thing, in the case of Schechter (presumably the case you mean) a chicken, that the ISP releases into the stream of commerce. The ISP here is a direct participant in the interstate commerce.
Why are there so many Anonymous Cowards defending net neutrality in these comments? Even the submitter is anonymous.
Anyway, you're wrong. Local ISPs are under the jurisdiction of state governments.
... that the Fifth Amendment doesn't apply simply because the Internet is not The United States of America. I don't recall electing an Internet government. Do you?
Then maybe this law wouldn't affect Mom&Pop ISP. Of course, Mom&Pop ISP would most likely be a dial-up ISP, which are easily interchangeable.
It certainly would affect the DSL & Cable ISPs like Comcast, AT&T, and Verizon... which are oligarchies in the areas they service, and the intended targets of any Net Neutrality laws.
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
Most industries have natural barriers to entry which make it expensive for competitors to enter the market, and its quite possible for a dominant player to use its profits to buy up the companies in the industries that make the things that you'd need to enter as their competitor in the primary industry, and to continue doing so until their monopoly extends to the entire supply chain from the mineral rights to raw materials to the retail sales to the customers, making it practically impossible for any competitor to enter anywhere in the field.
The only government support that is generally necessary is government enforcement of property rights and the absence of government anti-monopoly action (and the former is often optional, as a sufficiently powerful player can enforce its own -- self-perceived -- property rights if the local government is unwilling or unable to do so.)
Local ISP's deliver content from out of state making them acting in interstate commerce by default.
They won't always be, but in the same essence as Interstate Commerce is being used as a means to grab a hold of power by the Federal Government today, if it hits it, it's all under their control. Look into minimum wage laws and how the federal law provides a minimum in most cases if you doubt me.
Exclusiveness contracts with distributors and retailers is another common tactic. See contracts from Pepsi and Coke in the 80's, O/S distribution contracts from Microsoft prior to the first US anti-trust action.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
Indeed, unless eBay, Craigslist, Amazon, and every other network store has a server co-located in Mom&Pop ISP's data centre (or another one in the same state) handling all transactions for that ISP, then any of M&P's clients performing transactions with those stores are performing transactions clearly covered by the Commerce clause. Therefore any interference or influence that M&P ISP may exert on those transactions would also necessarily be covered by the Commerce clause. This might still leave open a whole bunch of abuses possible against non-commercial entities (for instance open P2P networks). That said it's unlikely that such a strict interpretation would be enforced - there are many other things regulated under the guise of the Commerce clause where the relationship is much more tenuous.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
And if Farmer Jo grows wheat for the sole purpose of feeding those chickens, she still isn't engaging in "commerce among the States".
Unfortunately, there is precedent for saying otherwise.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815.
"To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so..... Their power all the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots." --Thomas Jefferson to William C. Jarvis, 1820
In other words:
I consider the Wickard decision to be invalid. I reject its conclusion as contrary to the Letter of the Law (commerce among states), and the Original Intent of the Time when it was written (1786-89). The Congressional authority applies to goods passing over state lines..... it does not apply to goods that never cross those lines. They have zero authority to regulate businesses whose property lies completely-and-wholly within the authority of the Member State's Legislature (see amendment 10).
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Car analogy: A trucking company delivering goods from out of state is engaging in interstate commerce, even though it may be an independent trucker.
I'm not a lawyer, but I play one on the Internet. Blog
You can consider it invalid all you want (and personally I think it should be as well), but that won't change the fact that there is precedent that can be used. And without some kind of force to back it up, "it's invalid" won't go very far unfortunately.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
Additionally, there's the issue that people who are in extreme pain/discomfort/etc. are not exactly necessarily able to evaluate the evidence and the claims of the people who are peddling $WONDER_PILL objectively -- it's hard enough for people who aren't in distress to do that with all the biased and outright misinformation that's put out there by companies with varying interests. It's fairly typical that drug company that wants to sell $WONDER_PILL heavily promotes any and all studies(*)/trials in their favor while downplaying studies/trials that are not in their favor. That's your "market forces" at work, right there. If you are interested in a pretty good review of this, I can recommend the short(!) book "Bad Science" by Ben Goldacre. It's simple, clear and the point on this issue.
(*) Oh, and, btw, "studies" can mean anything from "double-blind randomized trials" to "I sat and thought about it for 5 minutes this morning".
HAND.