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Does Net Neutrality Violate the Fifth Amendment? 341

Posted by CmdrTaco
from the constitution-guarantees-short-sleeve-shirts dept.
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.'"
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Does Net Neutrality Violate the Fifth Amendment?

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  • riiiiight (Score:2, Insightful)

    by Anonymous Coward on Monday August 02, 2010 @11:03AM (#33110430)

    Bullshit! If you want the Internet to become as bad as cable tv is these days then buy into this bogus horseshit idea this guy is peddling.

  • by Anonymous Coward on Monday August 02, 2010 @11:04AM (#33110440)

    do not require just compensation.

    This whole approach smacks of ignorance.

  • What A Crock (Score:4, Insightful)

    by WrongSizeGlass (838941) on Monday August 02, 2010 @11:05AM (#33110454)

    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.

  • I don't get it... (Score:3, Insightful)

    by mcgrew (92797) * on Monday August 02, 2010 @11:06AM (#33110486) Homepage Journal

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

    No propery is being taken.

    any governmental regulation that results in "permanent, physical occupation" of private property constitutes a per se taking

    If so, then the speed limits on the highways constitute a per se taking. 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.

  • by Anonymous Coward on Monday August 02, 2010 @11:07AM (#33110510)

    "Just compensation": they run their cables on public land, access to that land is their compensation. Also, lack of Net Neutrality is a first amendment violation.

  • by Glasswire (302197) <glasswire.gmail@com> on Monday August 02, 2010 @11:10AM (#33110552) Homepage

    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.

  • Re:The title (Score:3, Insightful)

    by MoFoQ (584566) on Monday August 02, 2010 @11:14AM (#33110612)

    agreed...plus the differences between eminent domain on tangible (physical) items and net neutrality are that with net neutrality the owner of the line retains ownership, gets paid by their customers, and it's not just one party vs the government; it's ALL parties across the board.

  • Re:Not all private (Score:5, Insightful)

    by Moryath (553296) on Monday August 02, 2010 @11:14AM (#33110616)

    Even easier. The 5th amendment is still subject to the Interstate Commerce clause and nobody in their right mind can claim the Internet isn't integrated just about fully with interstate commerce these days.

    Go anywhere NEAR the level of the Supreme Court and their response will be "5th amendment? Sorry, Interstate Commerce. Buh-bye now." Even the 9th Circus couldn't manage to mess that ruling up.

  • Biased much? (Score:4, Insightful)

    by TubeSteak (669689) on Monday August 02, 2010 @11:15AM (#33110620) Journal

    the website: openmarket.org
    the conclusion: That's not smart policy -- jeopardizing taxpayer dollars for a scheme that was ill-conceived from the very beginning.

    Why am I not surprised.
    Somewhere along the line, "open markets" became an end unto themselves,
    mostly through deregulation, instead of a means to create better competition.

    And they make an entirely unconvincing argument about net neutrality
    being equivalent to an easement on the service providers' property...

    Property which itself could not exist without numerous easements on public and private land.
    Hell, I have one of those large green easements in my front yard. And another for the power company.

  • by Anonymous Coward on Monday August 02, 2010 @11:15AM (#33110630)

    If so, then the speed limits on the highways constitute a per se taking. 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.

    Bingo - that's the sort of tinfoil hat Randian libertarianism that's popular on the right. Hell, most of them think that the IRS is "taxation without representation" if their guy doesn't win the election.

  • Re:What A Crock (Score:5, Insightful)

    by yincrash (854885) on Monday August 02, 2010 @11:16AM (#33110640)
    Discrimination for most situations is not illegal.
  • by robot256 (1635039) on Monday August 02, 2010 @11:20AM (#33110680)

    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.

  • by fuzzyfuzzyfungus (1223518) on Monday August 02, 2010 @11:24AM (#33110756) Journal
    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.
  • Re:Not all private (Score:4, Insightful)

    by icebrain (944107) on Monday August 02, 2010 @11:24AM (#33110766)

    Hell, it'd be one of the few claims of authority under the IC clause that's actually legit.

  • by buback (144189) on Monday August 02, 2010 @11:29AM (#33110844)

    ... 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

  • by QuantumRiff (120817) on Monday August 02, 2010 @11:30AM (#33110866)

    You damn Liberal.

    If I want to put 120HZ power on the grid, that's my right! If I want to do 75hz, that's my right.. (never 50hz, that's for socialists!)
    To much regulation is hampering my business!

  • Re:Not all private (Score:0, Insightful)

    by Anonymous Coward on Monday August 02, 2010 @11:31AM (#33110880)

    *sigh*

    I should just skip law related articles on /. No one on /. knows anything about the law.

    GP is just completely wrong, even though everyone on /. is parroting this. All property rights come from the government. So if the fifth amendment didn't apply to property rights that came from the government, the fifth amendment would have zero applicability.

    And the commerce clause *does not* trump the fifth amendment. Generally, later passed laws trump earlier passed laws, even at the Constitutional level. So the Fifth amendment generally trumps the commerce clause, because the fifth amendment was passed later. Additionally, with the wide interpretation that the Supreme Court has given to the commerce clause, if the commerce clause did trump the fifth amendment, the fifth amendment would have no legal effect.

    Government: We're taking your farm under the commerce clause.
    Farmer: But the fifth amendment!
    Government: Commerce clause trumps. Your farm affects interstate commerce. You lose, haha!

    Please don't comment on legal matters when you have no idea what you're talking about. You just make the signal to noise ratio far worse.

    My final comment is that I don't think a fifth amendment challenge to network neutrality stands any chance, but not for any of the reasons stated by /. posters.

  • Re:The title (Score:5, Insightful)

    by mysidia (191772) on Monday August 02, 2010 @11:33AM (#33110898)

    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.

  • by natehoy (1608657) on Monday August 02, 2010 @11:41AM (#33110998) Journal

    But the right-of-way that those wires were installed over was done via eminent domain, which is a government function.

    The fact of the matter is that the placement of those wires is a public-private partnership because the wires could never have been placed without government-mandated rights of way.

    Access to place those wires was granted in return for the company accepting a regulated monopoly position (and often taxpayer dollars were used to help fund the wires themselves).

    Concepts like universal access, of which net neutrality could be considered a logical extension, were part of the package that companies signed up for when they demanded the government grant them a monopoly and use public powers to benefit a private company.

    Don't like the idea of the wires the government helped pay for which are now residing in a public right of way being regulated? Pull your fucking wires out and refund the money the government paid to help you run then, or abandon the wires. Let someone else have a shot at it.

    You can have the monopoly you demanded and accept regulatory and financial assistance from the government, or you can avoid regulation. PICK ONE. Figure out how to run your wires without asking the government to help you and without involving any public resources whatsoever, and you can do what you like with those wires.

    Ironic, is it not, that the same companies that demanded the government exercise eminent domain in order to force landowners to allow those wires are now claiming that those selfsame wires are inviolate private property and that the regulations they accepted in return for government intervention to grant them their monopoly is somehow an exercise in eminent domain?

    Even if it is, so what? "He who lives by the sword..."

  • Re:Simple answer (Score:5, Insightful)

    by imakemusic (1164993) on Monday August 02, 2010 @11:42AM (#33111022)

    Most Slashdot articles which have a title that is a question can be answered "no".

    Does Net Neutrality Violate the Fifth Amendment? No.
    Is StarCraft II Killing Graphics Cards? No.
    Should Professors Be Required To Teach With Tech? No.
    Etc.

  • by MattW (97290) <matt@ender.com> on Monday August 02, 2010 @11:47AM (#33111098) Homepage

    If you have only one broadband provider, then even if they are brutally honest about how they mess with your traffic, then most people are still going to use that.

  • Re:Not all private (Score:3, Insightful)

    by Anonymous Coward on Monday August 02, 2010 @12:03PM (#33111334)

    Sigh back. Anonymous cowards who don't know the first thing about law should go away.

    Sayeth the pot to the kettle.

    Obviously you didn't see the eminent-domain cases a few years back where the Supreme Court ruled, under "interstate commerce", that a state taking people's homes away to build a "business park" for a stripmall and factory in order enlarge their tax base was legit thanks to the IC clause.
     
    According to current SC precedents, just about NOTHING trumps the IC Clause.

    You would be talking about Kelo v. City of New London [wikipedia.org], 545 U.S. 469 (2005). The case related to the fifth amendment, but it didn't bring in the interstate commerce clause. Why would it? It was about a city exercising the power of eminent domain under the authority of a state statute. No federal laws were at issue. Instead, the issue was whether the city's exercise of emininent domain power legitimately qualified as a "public use" even though the city was not going to use the condemed property itself:

    Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

    You are right that the interstate commerce clause has incredibly broad scope. But, Kelo isn't the best case to refer to in discussing its power (except, perhaps, in discussing supreme court judicial philosophy about deferring to legislative processes in defining certain constitutional boundaries of protection).

  • Re:riiiiight (Score:2, Insightful)

    by Surt (22457) on Monday August 02, 2010 @12:04PM (#33111348) Homepage Journal

    Well, it's slightly different in that:
    1) It's not the public airwaves.
    2) It's all taking place on privately owned physical property.

  • Re:riiiiight (Score:5, Insightful)

    by Spazmania (174582) on Monday August 02, 2010 @12:07PM (#33111396) Homepage

    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.

  • Re:Not all private (Score:5, Insightful)

    by Korin43 (881732) on Monday August 02, 2010 @12:09PM (#33111418) Homepage
    I fail to see how the Commerce Clause trumps the Bill of Rights. Isn't the whole point of the Bill of Rights to list out things that the government can't do, even if the Constitution would otherwise allow it. You're acting like it's the other way around. As an example, that's like saying the government can arrest you for complaining about Walmart because the Commerce Clause trumps the First Amendment.
  • Re:Not all private (Score:3, Insightful)

    by Surt (22457) on Monday August 02, 2010 @12:09PM (#33111422) Homepage Journal

    Who is doing the taking in this scenario?

  • Re:riiiiight (Score:3, Insightful)

    by s73v3r (963317) <`s73v3r' `at' `gmail.com'> on Monday August 02, 2010 @12:12PM (#33111460)
    And how did that "privately owned physical property" get the right to be laid on my property? I tell you what; if an ISP wishes to violate Net Neutrality as they please, they can, so long as they actually have to work out right of way agreements with everyone who's property their lines runs through.
  • Re:Not all private (Score:5, Insightful)

    by Intron (870560) on Monday August 02, 2010 @12:19PM (#33111562)

    All property rights come from the government.

    What country are you from? In the US people have natural rights, the government can only restrict those rights based on the Constitution. No rights "come from" the government.

  • by hedwards (940851) on Monday August 02, 2010 @12:21PM (#33111578)
    It is, that's what has to happen in order to form a society. For instance you give up the right to kill whomever you can in a trade for them giving up their right to kill you if they wish. But only a nutjob really believes that most of the regulations are unreasonable. Speed limits are a limitation on your non-essential liberty in an effort to keep fatalities on the roads to a reasonable level. Ideally it's a finely tuned compromise that maximizes the freedom available while reducing unnecessary risk to others.
  • Re:Not all private (Score:2, Insightful)

    by mcornelius (1007881) on Monday August 02, 2010 @12:36PM (#33111790)

    *sigh*

    I should just skip law related articles on /. No one on /. knows anything about the law.

    Quit while you're ahead.

    All property rights come from the government.

    Really? Have you looked at the Fifth Amendment?

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Note consistently the use of the negative to constrain government. It presupposes "life, liberty, [and] property." The entire history of American Constitutional jurisprudence relies on the notion that government does not grant rights; it is constituted to safeguard them.

  • Re:Not all private (Score:3, Insightful)

    by Moryath (553296) on Monday August 02, 2010 @12:40PM (#33111858)

    We get some deranged loonies out here. Net Neutrality isn't a partisan issue but it sure seems like a lot of people think "their side" is uniformly supportive of it for some reason, and they get into the same "waah republicats/demicans bad" insanity that infects all their brain-dead "thinking".

  • Re:The title (Score:3, Insightful)

    by Myopic (18616) on Monday August 02, 2010 @12:44PM (#33111902)

    As much as we wish it did, the Constitution does not prevent Comcast from infringing our right to free speech or to assemble.

  • Re:riiiiight (Score:3, Insightful)

    by Myopic (18616) on Monday August 02, 2010 @12:48PM (#33111944)

    I'm not clear on what you mean. They want to use the lines on my land to provide uneven service to their customers. If that weren't true, then I could rip up the lines on my land without affecting their little racket there; but ripping up the lines would in fact ruin their evil scheme. Their servers on their own land also have a part in the whole thing.

  • Re:riiiiight (Score:3, Insightful)

    by Myopic (18616) on Monday August 02, 2010 @12:50PM (#33111970)

    End of discussion. This is exactly the truth. This is a simple question of market regulation; there is no taking going on, and the eminent domain question is ridiculous.

  • Re:The title (Score:4, Insightful)

    by arkhan_jg (618674) on Monday August 02, 2010 @01:06PM (#33112174)

    It's all about double-dipping for the same content. They want to charge home users per-byte for content travelling across their network - and ALSO charge 'popular' content providers a fee at the OTHER end of the pipe so their content will be admitted to go to the customer in the first place.

    It's simple why, though. They see companies like google making money hand over fist by providing popular services; and despite them getting paid once by the end-user to transmit that data, they don't feel that their fees for bit-shifting are giving them enough profit - they want some of google's profit too, because hey, they're the middle man, and why shouldn't they get to charge both parties for the same transmission and get paid twice?

    If net neutrality meant that they weren't going to get paid by *either* party, then yes, they might have a point about being required to carry the traffic anyway. Being 'forced' to carry the content their customers have already paid to have delivered? How the hell is making them live up to their side of the contract without pulling a mafia 'nice website, be a shame if anything happened to your customer base' unconstitutional?

    Still; in the UK, the sender pays for phone calls, texts, MMS, etc, it's always free to receive. In the US, I understand both sender and receiver are charged for calls and texts on mobiles? So maybe there's a precedent for your telecoms providers double dipping.

  • by gr8_phk (621180) on Monday August 02, 2010 @01:10PM (#33112240)
    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.
  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Monday August 02, 2010 @01:21PM (#33112438) Journal

    IANAL, but water rights may make a good analogy.

    The landowner of private property across which a creek flows cannot take all the water. Sure, such is a restriction of the owner's freedom, but it is a fair restriction, as it stops the owner from depriving everyone downstream. Similarly, the owner can't set up a permanent net to catch all the fish passing through.

    Roads are another analogy. There are many rules about what is allowed on our roads, but they are all meant to deal with safety and practicality. Congestion is handled not so much with rules, though some places have stoplights on the entrance ramps of freeways, but with incentives and disincentives such as tolls, and the congestion itself.

    Seems a lot of think tanks, such as the Hoover Institute, have been captured by corporate interests. They have very bland mission statements that evoke Mom and apple pie, but their studies seem careless of consequences. Some "think tanks" such as the Heartland Institute, are total lackeys if not outright creations of corporations, solely to provide a veneer of intellectualism. Instead of thinking of ways to help everyone, many of them scheme. Instead of drawing conclusions from facts, they select facts to fit unstated and barely concealed agendas that are of course contrary to the interests of the majority. Sometimes they don't even trouble to select facts, but just make stuff up. And if this gives all science a bad name, and casts doubt on Global Warming, the dangers of tobacco, and anything else that the powerful think just might hurt established businesses, so much the better as far as they're concerned. This "logic" about why Net Neutrality is some sort of infringement of rights smells like the work of such organizations.

  • Re:The title (Score:5, Insightful)

    by Homr Zodyssey (905161) on Monday August 02, 2010 @01:24PM (#33112492) Journal

    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.

  • Re:Not all private (Score:3, Insightful)

    by jbengt (874751) on Monday August 02, 2010 @02:20PM (#33113348)
    Don't confuse natural rights, like the right to life, liberty, and the pusuit of happiness, that we are endowed by our creator, with property rights, like real estate deeds endowed by the government's law.
  • Re:Not all private (Score:3, Insightful)

    by Fjandr (66656) on Monday August 02, 2010 @03:14PM (#33114204) Homepage Journal

    Corporations are not people (despite the Supreme Court's recent ruling). They don't (well, shouldn't, since the Supreme Court is apparently staffed with morons right now) have rights, they have privileges and immunities granted to them through state laws regarding their construction and use.

    Also, this is one of the few examples where I actually agree the Commerce Clause is the controlling factor. Most of the laws that the Federal Government enacts under the auspices of the Commerce Clause are an absolute joke. (Really? You can force an individual to buy health insurance because it's a commercial issue? Means you can force them to buy the latest celebrity sex tape too, since that's a commercial issue.)

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