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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."
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.
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.
Not hardly. Corporate networks would never, ever have evolved into the Internet.
Without the work done by government and the publicly-funded universities, there would never, ever have been an internet. There are no business models from individual corporations that would have resulted in anything nearly as great as the Internet.
Private enterprise took their best shot at making an Internet and it turned out to be cable television. Remember all the "public access" and "interactivity" there was going to be on cable television? Maybe you're too young to remember the hype surrounding the early "pay TV" efforts, but it was supposed to "serve communities" and "bring us together". We would do our shopping on cable TV and communicate with each other on cable TV and play games on cable TV and have town hall meetings on cable TV.
Instead, we got Spike, the Home Shopping Network and some expensive premium channels.
You are welcome on my lawn.
Net Neutrality wouldn't be a regulatory taking in it's head as much as it would be a consumer protection situation. You see, the ISP's sell subscriptions to the internet. If they block any portion of that internet, then it's more or less false advertising. If the ISP restricts or manipulated the packets or information crossing into their network to below what the consumer purchased, then it's bait and switch, failure to deliver contracts services, and possible unfair business practices depending on the state in question. And you have to remember, the end user isn't the only consumer here, Google leases their bandwidth, so does ATT and Verizon when it crosses other networks. These are generally called peering agreements but sometimes there is compensation involved too.
So as long as the consumer gets what they paid for without the ISP manipulating it to anything below what was represented when the service was purchased, then it's simply a matter of consumer protection and the feds gain jurisdiction when the communications cross state lines. So suppose you purchase a 10 gig backbone to run a data center and the website "the next big thing". When a user on another network requests your site or services, if the ISP limit's your data path to below what you paid for, or what I the user paid for, or manipulates the information in any way to make your service perform less they they should under those conditions combined, then we are both being ripped off by the ISP screwing with the traffic. And if either of us are in different states, or the ISP is in a different state, then it's federal jurisdiction.
Basically, if the ISP delivers what we pay for, then there can't be a comcast screwing up bit torrent traffic, there can't be an SBC/ATT threatening to slow google down to dial up speeds if it doesn't pay an extortion fee. There can't ba a Verizon blocking VoIP packets from Skype or other carriers in favor of their own obscure offerings. If we get what we paid for, both you the content provider and me as the end user, all that can happen for someone to pay to give either of us more.