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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."
Boston College Law Professor Daniel Lyons points out how the Emancipation Proclamation violated the 5th Amendment.
Further back even... while they were "loans", it was still interfering with "private enterprise" to pass the Rural Electrification Act in 1936. I imagine that electrical power would still be in much the same state that broadband to rural communities is today without it.
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?
Thanks for letting me know that government interference always fucks things up on the government-created information network. It would be so much better if I was unable to hear your insightful commentary. The internet sure has fucked up our economy.
The enemies of Democracy are
My word you've been busy spreading some free market love and dry humping that ideological leg today. Are you one of those plants I hear so much about?
So government only fucks things up unless it doesn't fuck things up, those times don't count. Gotcha.
Except, of course, the times where it didn't fuck up the economy. Or the times where government action was necessary to prevent a fucked-up economy that would have run unchecked if private enterprise was allowed to run amok.
Anti-trust and public infrastructure (roads, canals, harbors, etc) being the most glaring exceptions to your "Every. Single. Time." malarkey.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
I'm pretty sure the GOVERNMENT has no concept of, or right to, ownership. .
This is incorrect on several levels. For one thing, ownership is actually defined by the government. Without a government, the piece of paper that says you own something would be worthless. Not only does the government have a concept of ownership, it actually creates all ownership.
"Owned by the government" means "belongs to the people" since WE paid for it.
Of course that is quite correct, but it does nothing to negate the grandparent's point. We the people paid for the property on which streets are built. Therefore in order to use that property for their networks, ISPs need permission from the elected representatives of the people, a.k.a. the government.
If these providers are not going to give all of us unfettered access to their networks, what incentive do we have to allow them to use our property to build those networks? They should buy their own damn land and put their networks there if they want to have total control over the signal. As long as they're putting the network on our land, we should have unfettered access to it.
My site: Free Nature Pictures
No. Private enterprise did not want the internet. In large part they said "it's just a fad, no significant amount of commerce will be done over the internet." Were you asleep all through the 90's? Here is a typical such article from Newsweek in 1995:
http://www.newsweek.com/1995/02/26/the-internet-bah.html
One of these days I'm going to cut you into little pieces. - PF
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.
The Internet's early beginnings were in the networks of the 1970s, but as a network resembling what we have today you'd have to go forward to the 1980s. There were a number of "free market" networks that also sprung up, or became popular, during the 1980s, including most successfully AOL and Compuserve. By the mid-1990s, the Internet was still immature enough for Microsoft to believe it had a chance of promoting its own alternative, the original version of MSN (which used Microsoft networking technologies, not TCP/IP, in its original incarnation as a Windows 95 thing.)
When the Internet did take off, the backbones and computer servers relied upon by the majority of users were outside of direct government control, with only academic sites, in practice, being government subsidized.
The Internet did not become popular because it was the only thing capable of doing what it was doing due to the government providing it with a big collection of servers, it was popular because it was a neutral, open, network, and the alternatives were closed and locked down.
While it's possible for the free market to introduce open, standardized, networks, the reality is that most of the time such standards only achieve success through government support. The Internet is an unqualified success, successful in large part because the government could provide the neutrality required to ensure it would work for everyone. And right now, the "free market" continues to be at the mercy of a handful of parasites who, on getting into the right positions, are willing to lock down and de-neutralize the network, putting short-sighted control goals ahead of the long term welfare of our network. You couldn't have picked a worse example of "governments stepping in causing failures" if you tried.
You are not alone. This is not normal. None of this is normal.
The internet would be born no matter who designed it. [snip] And who knows, had private enterprise designed the internet from the start, it could have more elegant solutions and such.
Ah, the youthful imagination of how things might have been, unhindered by knowledge of how they were, knows no bounds. And in that imagination, the Internet comes to be in its current form regardless, only better!
But in reality, we already know what private enterprise would have created, because they did create it, or rather them. And they were called Prodigy, AOL, CompuServe, MSN, and others. Of course they were largely piggy-backing off the government-created telephone network, but let's skip that for now.
And you're right, they had some very elegant solutions. For example, they dispensed immediately with the idea that every host should be able to act as both client and server, and that it should be possible to host data outside of on the singular corporation's servers and without their approval. Why it would be so much more efficient if we couldn't waste our time on Slashdot because it violated the AOL community standards.
And talk about elegance -- how about having multiple, mutually exclusive networks! This whole "one global network" thing is totally inelegant. Oh sure there was some consolidation due to buyouts and mergers, but we'd still be waiting for that process to conclude. It's only because of the existence of the Internet, and it's obvious superiority to anything private industry had provided on its own, that forced AOL, MSN, and the other few remaining private networks to first provide Internet access, and then ultimately become simply ISPs with only minor portal websites to remind you of what had been. Though even as this was happening, Bill Gates was saying the Internet was just a passing fad and he was betting everyone would come back to the safe walled garden of MSN soon -- oh yeah, he was just about to create something even better than the Internet. Uh-huh.
Had it not been for the Internet, we wouldn't be having this conversation because you'd be on MSN and I'd be on AOL.
We know what private industry would have done if there was no government interference, if you had your way. And it would have sucked ass.
The enemies of Democracy are
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
No, because private enterprise would find a way to make it work.
There are as many examples of that not happening as there are of it happening.
If enough people want something and the government doesn't interfere, the free market comes up with an elegant solution that works
The free market solution for electricity prior to the rural electrification act was to just not sell it to people who were outside the cities, because it was not seen as profitable. After all at that point most of the country's wealth was concentrated in the cities, so why would the market be interested in bringing electricity to poor people who might not be able to afford the requisite rate for bringing power that far away?
Hence it is likely that had that act not taken effect, much of our agriculture (which tends to not be in large cities) would have needed to be done without electricity. That, or the farms would need to be sold to large corporations who could afford to pay for electricity to be purchased and brought to them - which would have put small businesses out of business.
Or are you just anti-small-business?
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
Meanwhile, private enterprise largely built the Internet after the very early phase, while government did its best to prevent commercial use. You know, companies like Sun, Cisco, etc, etc, etc, etc....
FAIL: Information Infrastructure and Technology Act of 1992
Nuff said.
One of these days I'm going to cut you into little pieces. - PF
Government did not make the internet what it is today; private industry did. Government wanted a WAN design, granted, but yeesh. 'government-created information network' is definitely not just a stretch, it's inaccurate. Government opening the door to private industry does not equate to government creation, and it certainly doesn't show initial interference to back up your somewhat rude point (http://en.wikipedia.org/wiki/Internet#History)
They created the technology, deployed the first real networks, and when they opened it up to private enterprise in 1988, many of them received government subsidies for the development of their networks, not to mention right of way and other dispensation. The ones that already existed only became part of the Internet because the Government had first created it; before that the private networks were walled gardens. Yes private enterprise developed the internet from that to what it is today, but to say it was government created is completely 100% accurate, and to say it exists in its current form only because of government "interference" is also 100% accurate.
If you don't like the term "government created" to describe the Internet as it exists today, fine, in that context I misspoke. You can't deny that the government did "interfere" with private enterprise in a way that guided them towards creating what does exist, directly contradicting the OP's point, which is my point.
The enemies of Democracy are
Full disclosure: My wife has chronic pain so I'm not completely detached from this issue. I still wouldn't want her taking drugs with unknown side effects.
"A market dominated by a collusive cartel" is what all unregulated free market systems naturally devolve into, in much the same way that entropy naturally increases.
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.
Wow, you're new here on Earth, aren't you?
Private enterprise didn't "largely" build the Internet. After the "very early phase" when government actually built the thing, it was publicly-funded universities that did the heavy lifting.
Private enterprise has mostly been "me too!" when it comes to the Internet, doing their best to turn it into cable television when they finally got a clue. In fact, I think if you were to point to the things that you love the most about the Internet, you'd find that they were mostly already in place before "private enterprise" got up to speed online, while the things you hate most (Flash, advertising, spam, spyware, etc) about the internet have been almost entirely the result of bright ideas from private enterprise.
You are welcome on my lawn.
If you're going to die anyway, why shouldn't you take an untested drug which might kill you or might save your life?
Because you have absolutely no reason to believe it might save you, nor how to distinguish it from a thousand other "medicines" which claim to fix everything wrong with you. And government-employed doctors at HHS can't because of the oath to "do no harm" as they're still charged with protection of its population regardless of what kind of stupid ideas they may have individually.
The more appropriate question is: if you're going to die, would you knowingly take something which is *more* likely to shorten your life than extend it? You wouldn't have the luxury of knowing the drugs you use are most likely safe, having no access to documentation. tests, manufacturing processes, safety measures, etc.. Those fake "dietary supplements" are generally physically harmless, which is the reason they're still around duping the induhviduals. There's a huge moral difference between leaving someone the freedom to do what they want and standing idle while lives are at risk. Letting big pharma reduce testing *just enough* to avoid massive wrongful death lawsuits is just an all-around nonsensical idea when you accept the fact that their boards have no care about negative consequences of their operation if the balance sheet is positive.
Reducing regulation would only serve only to reduce testing cycles to a fraction of current far-from-perfect standards, an explosion of names for the same drug sold under a plethora of brands to the point where it would take even a doctor forever to figure out what to prescribe. Sure it *might* be a little cheaper, but at a cost far too great. There's room to debate making the process more efficient or even less cautious, but you zealots can only manage the complexity of thought with room for a single option: abolishing federal agencies.
BTW, I'm glad to see you didn't deny that pharmaceutical regulation has killed vast numbers of people.
They probably didn't because it's a pointless exercise only a simpleton would require. Even when the pass FDA tests and get approved, bad drugs still kill plenty of people. Tipping the scale in the other way makes sense only if you consider death as simply part of doing business. But there I went and forgot who I was talking to: of course that's acceptable to you. It's not Merck's fault people suffered heart attacks- it was their own damn fault for using Vioxx! It shouldn't even have been removed from the market- people should have all the options and damned be psychology for proving that excess choice has little to do with making good decisions.
We used to live under that system, and it fucking sucked. It sucked so badly that the masses revolted and demanded government regulate these industries which perpetrated terrible lies and destruction upon the population. This happened over and over and over again.
People like you have forgotten the lessons of history. Do you think big government was instituted by bureaucrats last Tuesday? We have built up the government over hundreds of years, a little at a time, each time to solve a problem. Every now and then we stumble, but we usually trade in a big problem (say, unregulated drug markets causing huge causualties) for a small one (say, fewer casualties).
Contradiction is just the automatic gainsaying of any statement the other person makes.
No it isn't!
And it's not informative, either.
Yes it is!
Well, actually, no you're right it's not informative at all. At most it's ever-so-slightly informative or funny. Mostly it's just me being a wag. One way or another, I was trying to engage Darkness404 on his intellectual level, and I think I achieved that.
Unless it's a company that's in the supply chain and you are not a direct customer.
What if you really hated something ADM was doing? They were involved in wide-spread price-fixing a few decades ago. How would you "stop doing business" with them? How are you going to "call out" a corporation like that? Without the government's enforcement, ADM would still be price-fixing (actually, they are, just no so much in the US).
See the problem is not companies with retail outlets so much as corporations that by their very size and scope and power have exceeded any authority that any nation or customer can have upon them. Say, Haliburton, or Blackwater, or the Carlyle Group, or Enron (back in the day) or KBR, or AIG? How could any consumer have an influence in the behavior of any of these corporations when these huge corporations don't have customers in the normal sense?
I'm sorry, man, but the most dangerous corporations today are not mom and pop storefront operations. They're transnational monstrosities that are more powerful than governments. They buy and sell governments.
When you have a vote and a free Press (we still have both in the US, no matter what Glenn Beck says), you have a say in what government does. You can organize, you can influence. The biggest corporations are way beyond the reach of consumers and citizens.
You are welcome on my lawn.
I think too many people talk about free markets without actually knowing what it means. A free market means companies regulate the market not the government so if companies decide to team up and agree not to compete on price in order to keep prices artificially high then that is still a free market.
The US mobile phone market is awful. It's a much more free market than Europe yet it's less competitive and more expensive and your phones are still locked down more than Europe and you have incompatible networks where as I can buy any phone in the UK use it on any network without thinking about it.
Companies are self serving and will not give people what they want if they can get away with it and people will generally let them get away with it because they just assume all businesses are greedy and you have to live with it because that's just the way it is.
If the internet were created solely by private businesses it would be nothing more than incompatible AOL networks for people to pick from. It would be utter shit.