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No, Net Neutrality Doesn't Violate the 5th Amendment 322

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."
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No, Net Neutrality Doesn't Violate the 5th Amendment

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  • by Anonymous Coward on Tuesday August 03, 2010 @02:44PM (#33127846)
    Boston College Law Professor Daniel Lyons points out how the Emancipation Proclamation violated the 5th Amendment.
  • by j0nb0y ( 107699 ) <jonboy300.yahoo@com> on Tuesday August 03, 2010 @02:49PM (#33127952) Homepage

    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.

    • by Monkeedude1212 ( 1560403 ) on Tuesday August 03, 2010 @02:56PM (#33128064) Journal

      IANAL and this is not legal advice.

      Where the hell did you learn to talk like that then?

      Did you pass the bar but decide to go into computers? I can't even get through reading those papers without getting a headache.

      • Re: (Score:3, Informative)

        by j0nb0y ( 107699 )

        Haven't gotten my bar exam results yet...

        I'll probably be going back into computers though. The legal market is pretty messed up right now.

    • by Todd Knarr ( 15451 ) on Tuesday August 03, 2010 @03:03PM (#33128202) Homepage

      Thing is, the ISP's already granted me (as a customer) an easement across their wires. Why do you think the bill they send me every month, that if I don't pay my service will be disconnected, is for? So when I as a customer hit Google and Google sends me data, I'm just using the easement I've already paid the ISP for. And it hurts the ISP's profits not one bit if the government says they have to be even-handed in allowing me to use that easement. It doesn't let the ISP increase their profits by interfering with things that compete with services the ISP wants to offer, but then the ISP never had a legal right to increased profits just by offering a service that competitors also offer.

      And of course Google's paying for it's own Internet access, so the whole "Google is free-riding!" whinge doesn't fly. Google may not be paying my ISP for Internet access, but that's OK because Google isn't getting Internet access from my ISP and they are paying the ISP they get access from. The deal between my ISP and the provider Google gets access from... well, that's between them. If my ISP isn't satisfied with their deal with Google's provider, my ISP needs to take that up with Google's provider and change the deal. It's simply not my problem nor Google's.

      • by j0nb0y ( 107699 )

        Thing is, the ISP's already granted me (as a customer) an easement across their wires.

        An easement is an ownership right. I don't think Internet access is analogous to an easement. An easement can't be revoked by the grantor after it is given. Your Internet access? Well, I don't know what your contract says, but I'd imagine there are a wide variety of reasons that your ISP could cut you off, and I doubt you would have any recourse.

      • Re: (Score:2, Interesting)

        by corbettw ( 214229 )

        An easement doesn't go away without the express permission of everyone involved in the easement. If your neighbor has an easement across your property to get to his garage, he doesn't lose it because he didn't pay you "rent" on that easement. That's one of the main differences between easements and leaseholds.

        A better analogy would be the phone company charging other phone companies to route calls across their network. And guess what? They all do that, they all have peering arrangements with each other for

    • Do you actually understand what "right of way" is? To be short and clear, it is a government supported right and protection against all manner of things that might interfere with their presence and their operations. Right of way exists for radio, electric power, telephone, cable TV and lots more. This luxury does not come free. It exchanges this luxury for providing services that benefit the community. While I think ALL services that require Right of way should be regulated by the same agencies for the

    • Re: (Score:3, Interesting)

      Net neutrality is legal because the ISP was granted a monopoly by the Local or State government, and they can impose any regulation as part of the deal. It's just the same way they regulate Electric and Natural Gas companies.

      If the ISP doesn't enforce net neutrality, the Member State government can revoke the monopoly, pay the ISP for property lost (as required by eminent domain), and hand the monopoly to a new company.

    • Re: (Score:3, Interesting)

      by sumdumass ( 711423 )

      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 stat

    • by Kpau ( 621891 ) on Tuesday August 03, 2010 @10:06PM (#33133390)
      "The paper pretends, instead, that broadband networks are 100% private." This is something I call "lying" rather than "pretending". The networks are no more "private" than the roads - both built with massive government (i.e. taxpayer) assistance. Of course, the "public airwaves" are also something the communication corporations like to pretend are their private channels as well.
  • 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.

  • 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

  • by LostCluster ( 625375 ) * on Tuesday August 03, 2010 @03:13PM (#33128388)

    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 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 iPho

    • by dkleinsc ( 563838 ) on Tuesday August 03, 2010 @03:38PM (#33128856) Homepage

      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.

      A couple issues with that solution:
      1. In many areas, a reasonable question to ask is "what competitors?"

      2. It's not just what my ISP does, it's what every ISP anywhere between me and Google does.

    • Re: (Score:3, Informative)

      by mvdwege ( 243851 )

      Race to the bottom. Look it up.

      Example: the minute a bank starts charging to send customers their monthly statements, customers will move to other banks, right? Wrong. At least here in .nl, the other banks decided that this was a good time to start charging for formerly free services as well, until the current situation where you get nickeled and dimed to death with small charges.

      In your hypothetical case, the other ISPs will not advertise their neutrality, they will start extorting content providers themse

  • Common carrier (Score:5, Insightful)

    by Anon-Admin ( 443764 ) on Tuesday August 03, 2010 @03:30PM (#33128698) Journal

    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

  • 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?

  • No Surprise Here (Score:4, Interesting)

    by hyades1 ( 1149581 ) <hyades1@hotmail.com> on Tuesday August 03, 2010 @03:54PM (#33129136)

    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.

  • by bertok ( 226922 ) on Tuesday August 03, 2010 @04:21PM (#33129542)

    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 [optus.com.au]. 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.

MESSAGE ACKNOWLEDGED -- The Pershing II missiles have been launched.