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The Courts

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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  • Not all private (Score:5, Interesting)

    by AJWM (19027) on Monday August 02, 2010 @10:04AM (#33110450) Homepage

    Fine, just impose net neutrality on those segments of the infrastructure which traverse land not owned by the ISP.

    Oh, wait, that's almost all of it.

  • taxpayers (Score:4, Interesting)

    by Anonymous Coward on Monday August 02, 2010 @10:05AM (#33110458)

    What if taxpayer money was used to pay for all or part of the privately owned infrastructure?

  • by LWATCDR (28044) on Monday August 02, 2010 @10:06AM (#33110474) Homepage Journal

    But for other carriers I would say no.
    Simple reason is that they have been granted access to public facilities. AKA. right of way. They have also taken public money in the form of taxes that where then paid to them to improve access "Universal Access".
    A wireless carrier on the other hand if they have paid for all their own tower space might have some wiggle room but then they are using the public airwaves which is also in a sense public resources.
    They do pay for those but they probably also agree to public regulation of them so over all I would say no.
    But I am not a lawyer and my limited understand is based on logic and common sense which often do not seem to apply to matters of the law.

  • by FreeUser (11483) on Monday August 02, 2010 @10:07AM (#33110506)

    OK, fine. If the telco monopolists are going to claim that basic regulation of their service to maintain network neutrality and ensure a sensible, working Internet constitutes an exercise of eminent domain (though somehow, similar regulation of voice signaling does not...like to see the pretzel-brains that can argue that with a straight face), then fuck 'em. Congress should just nationalize the entire telco grid and have the FCC lease back access to any comers on a common price basis, reducing the telcos to value-added providers and making them compete with any and all ISP start-ups on a level playing field. Kind of like our national highway system...

    Come to think of it, that's a pretty good idea no matter how the courts rule.

  • by chaboud (231590) on Monday August 02, 2010 @10:11AM (#33110574) Homepage Journal

    Someone needs to read up on what a common carrier [wikipedia.org] is.

    These companies are providing public access to public web-sites using cables strung over public land subsidized by public money. I can see why they would want to call it private...

    That said, the Obama administration played right into the hands of panicked internet regulation doomsday Republicans with their ADA-waving "websites are public places and subject to specific access requirements" talk in the last couple of weeks.

    If we're going to talk about amendments, let's talk about the first one.

  • by Walter Wart (181556) * on Monday August 02, 2010 @10:19AM (#33110666) Homepage
    According to Conservative/Libtardian dogma ANY regulation of any sort is a government "taking".
  • If so, then the speed limits on the highways constitute a per se taking.

    No... Speed limits on the highways would be, at best, an analogy to some sort of governmental-imposed bandwidth regulation on the interwebs.

    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.

    Nor is battery a good analogy. Go back to the root - net neutrality. It's about an ISP wanting to charge more for "premium" access and if you don't pay, they bump you down a tier or limit your access. A proper analogy would be if you charged visitors to your house for access to your bathroom.
    So, with that analogy in mind, if the government required you to let anyone and everyone use your bathroom - i.e. physically occupy it - and the requirement was permanent - i.e. anyone can use your bathroom, forever - then it would be a taking. Same idea as if the government required you to let people drive across your backyard

    BUT, here's where he seems to be wrong (without having read the paper)... an ISP isn't like your backyard or your private residence. They're engaged in commerce, and under the Commerce Clause, the Federal government has the power to regulate them. The case on point would be Heart of Atlanta Motel v. US [wikipedia.org], which said that the interstate commerce clause allows the government to establish regulations that prevent discrimination in commerce. And providing inferior accommodation to a group of people is very similar to tiered internet service.

    And just in case anyone says "but people who refuse to pay for premium service aren't a protected class", Heart of Atlanta wasn't about the 14th Amendment, it was about the Commerce Clause and the Federal government's power to enact the Civil Rights Act in the first place.

  • by Anonymous Coward on Monday August 02, 2010 @10:30AM (#33110864)

    Simple reason is that they have been granted access to public facilities. AKA. right of way.

    I think this is really the winner: Even if you accept the argument as stated that it would be a taking (which is pretty exceptional), all this means is that they have to reword the law. Make a large pile of federal money contingent on the states only supplying access to eminent domain to those who follow network neutrality. That makes following network neutrality optional, so it's not a taking, it's just that if they decline they don't get any future access to eminent domain. Which is worth more to them than violating network neutrality.

  • by w3woody (44457) on Monday August 02, 2010 @10:31AM (#33110870) Homepage

    The argument that net neutrality is the same as a permanent physical occupation of the private property is a taking under the fifth amendment strikes me as silly.

    Take that away and what do you have left? A regulatory taking which reduces the property value of the private property being taken. Well, guess what? My house is being regulated in a similar fashion: I can't just build anything I want--and that arguably reduces the value of my property because I can't use it in any way I so choose. (And while some of those potential usages are silly, some of them would arguably add value to my property--such as building a 3,000 square foot livable basement which would add around $400/sqft to the value of my house.)

    And if we're talking about an easement that was added to the property after acquisition, we just passed a zoning which made my area a "historic neighborhood", effectively adding a new easement.

    So where is my money?

    If the professor wants to go down this route, then there are plenty of examples of regulatory takings where people bought property only to discover after the fact (and after the title search) that the government has decided to turn their property into a wetlands or into part of a private reserve--thereby making it impossible for them to use the property as intended or to sell the property, since it is now worthless. Where is their money?

    As someone with an economics bent I'd like to see government regulatory burdens on private property treated in an economically neutral way: to use the takings clause to require additional government impositions on private property to require governments to compensate the owner for the resulting devaluation, unless a mutual agreement is reached. However, that is not how the takings clause is being used. To over-reach here on net neutrality is to abuse how we are currently interpreting the takings clause.

  • Re:What A Crock (Score:3, Interesting)

    by AHuxley (892839) on Monday August 02, 2010 @10:35AM (#33110926) Homepage Journal
    The whole net works on the fact that all packets just flow. If every isp, university, .com, media company started to slow, shape, charge, then so would their packets.
    Most on the internet are telcos, isp's or have massive peering deals at some end and pay up for access.
    The property aspect seems to be some real stretch to muddy the water.
    Service providers’ property ends with peering ie other isp's - its all in bulk and all paid for as a swap or cash or some best effort deal.
    If they dont want to be part of the internet, be a massive private network, rail, banks ect and charge, shape as needed.
  • Re:Not all private (Score:4, Interesting)

    by Moryath (553296) on Monday August 02, 2010 @10:36AM (#33110942)

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

    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!

    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.

  • by colinnwn (677715) on Monday August 02, 2010 @10:41AM (#33111006)
    Wires are public property when public funds subsidize them, or legislatively mandated customer fees provide reimbursement to the telecom companies for building FTTH.
  • He's a Troll (Score:5, Interesting)

    by Wannabe Code Monkey (638617) on Monday August 02, 2010 @10:42AM (#33111026)

    Please remember that this is the same Daniel Lyons [wikipedia.org] that covered the SCO trial and (stripped from wikipedia),

    claim[ed] that Groklaw was primarily created "to bash software maker SCO Group in its Linux patent lawsuit against IBM, producing laughably biased, pro-IBM coverage".

    Between 2003 and 2007 he covered the SCO cases against IBM and against Linux. He published articles like "What SCO Wants, SCO Gets", where he stated that "like many religious folk, the Linux-loving crunchies in the open-source movement are a) convinced of their own righteousness, and b) sure the whole world, including judges, will agree. They should wake up."

    We should wake up... to the fact that Daniel Lyons is just like John Dvorak, and will write the most inflammatory stories with the flimsiest amount of research, and doesn't deserve anyone's pageviews.

  • Re:What A Crock (Score:1, Interesting)

    by Anonymous Coward on Monday August 02, 2010 @10:45AM (#33111068)

    The fourth amendment is all about discrimination.

    The ninth amendment says that any law that isn't explicitly allowed is forbidden.

    This is exactly why the founders didn't want the bill of rights in the constitution, because you seem to think that they only rights you have are ones explicitly granted in the constitution. (despite the 9th saying exact opposite of your assumption)

    It's opposite.
    The only rights the government are allowed to take away are the ones explicitly given to it in the Constitution.
    (as stated explicitly in the 10th)

  • Re:riiiiight (Score:3, Interesting)

    by HangingChad (677530) on Monday August 02, 2010 @10:47AM (#33111088) Homepage

    Bullshit!

    Exactly right. It's no different than the government regulating the public airwaves.

    I don't remember any of the telecos complaining when the government handed over the original internet infrastructure to private companies but they want to whine like bitches when the government says it should remain free and open.

    Isn't it about time the geek forces of the world blazed a new trail in communication mediums? Self-discovering mesh networks, something really technical that most people couldn't figure out? I miss the good 'ol days of BBS and the early days of the net before AOL loosed hell upon the early internet.

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

    by postbigbang (761081) on Monday August 02, 2010 @11:01AM (#33111294)

    You could look at this conversely. Telcos and ISPs are used to being common carriers for transport of other calls, where costs are shared through agreements, meaning SS7 interchange, and so on-- at prices that they're free to gouge (or not).

    The Internet, however, wasn't built on this model at all, and the underlying transports are to give the maximum available throughput at all times, 24/7. Therefore, any protocol throttling is both a violation of the presumed full share of available bandwidth, and also potentially a threat to free speech, and right to assemble. Further, the fifth amendment and due process also mean that if I'm robbed of my bandwidth by protocol throttling, then I want compensation from the robbers (are you listening, Comcast?).

  • Re:What A Crock (Score:3, Interesting)

    by jythie (914043) on Monday August 02, 2010 @11:04AM (#33111346)
    The term you are looking for is 'right of way' or 'easement' laws, which regulate public crossing of private land. And yeah... it would be fascinating to try to apply those laws to this debate...
  • Re:Not all private (Score:5, Interesting)

    by trentblase (717954) on Monday August 02, 2010 @11:08AM (#33111408)
    And by "such activities", I mean "such regulations/laws".

    And to the ISPs, I say... did the Diner Neutrality Act (aka Title VII) violate the 5th Amendment because it forced Denny's to let black people traipse across their private property and order chili fries? No, it did not.
  • Re:Not all private (Score:1, Interesting)

    by Anonymous Coward on Monday August 02, 2010 @11:15AM (#33111506)
    I'd really like to believe this, but it just ain't so. This will get to the Supreme Court because the relevant corporations have the highest priced lawyers in the land. Once it gets to the Supreme Court, we can predict in advance with absolute certainty how at least six of the justices will vote. Ginsberg and Breyer will vote in favor of net neutrality out of public interest and ironclad constitutional arguments, and will very likely be joined by Sotomayor and Kagan. Roberts, Scalia, Alito, and Thomas are already drooling over the prospect of simultaneously corn-holing the internet (and by proxy their arch enemy the 1st amendment), pleasuring their corporate masters, and especially for Roberts, doing some serious judicial activism. So the question is: What will Justice Kennedy do?
  • Re:Bullshit (Score:0, Interesting)

    by DaveV1.0 (203135) on Monday August 02, 2010 @01:11PM (#33113226) Journal

    Actually, no. The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press, ..." The First Amendment would not apply because the government is not imposing any restrictions.

    While one has a right to free speech, one does not have a right to use other's facilities to exercise that right. One may get a soap box and give a speech in a public location but one does not have a right to go onto private property and do the same thing because it is private property. A newspaper is not required to publish one's letter or article because it is private property, and refusal to do so is not a violation of one's First Amendment rights because it is a private business. One cannot go into a private business and demand to use the address system to give a speech because both are private property and one has no right to use them.

    The only one who has a right to use privately owned equipment is the owner, and even then, that use might be restricted or regulated.

    A non-neutral net does not violate one's First Amendment right to free speech because the government is not limiting anything and one's free speech is no more limited by this than by one being denied access to the address system at Walmart to give an anti-consumerism speech.

    An Internet connection is a connection to a private network, and as such, the owner's of said network can, to a large degree, control the bandwidth allocation. The government may limit such control, but the degree it may do so is not well defined. TFA makes an argument that by dictating that one must allow traffic across one's network one does not wish to allow, the government is taking de facto control of a privately owned asset for use by the general public. Said argument has some merit.

  • Re:The title (Score:2, Interesting)

    by mysidia (191772) on Monday August 02, 2010 @01:36PM (#33113634)

    Unless they've signed a contract to that effect, nothing forces them to use those resources to sell internet access, instead of using their circuits to sell something else (such as phone service), for example.

    Telcos leave comms cables dark so often, there's a special name for it... "dark fiber"

    And when telcos install FiOS-like services that utilize fiber in the process, they usually intentionally remove or destroy the now unused copper, to ensure other providers won't be able to use it for selling services in the future.

    If you think they don't have any exclusion rights, you might want to re-read the rules. Or look at their actual actions more closely.

    Even if you think it's a legally gray area, or the public has a right to object or prevent their exclusion, what happens in practice is a lot more important.

    They definitely have at the very least a de-facto right to exclude others from using their infrastructure, or even from sharing in the use of the easements on public property, or that were created by local authorities forcing local property owners to allow for-profit enterprises to bury cable in their lawn, etc.

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

    by Chyeld (713439) <chyeld@gm a i l . c om> on Monday August 02, 2010 @01:37PM (#33113646)

    Worse, it's about triple dipping.

    You, the customer pays the ISP for a connection.
    Your ISP pays a backbone provider for a connection.
    Backbone providers pay each other to carry each other's data.

    Now, either your ISP or their backbone provider want to also be paid by the sites you visit to carry that data over the connection you already paid for, even though they are already being paid by you or the ISP respectively and the originating backbone to carry that data to you.

    The MOMENT someone brought up getting rid of net neutrality, the government's first response should have been, "Oh, really? Well what do you advertise your product as? Do you disclose this? No? Then I guess you won't, will you?"

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

    by pugugly (152978) on Monday August 02, 2010 @01:38PM (#33113676)

    The one legal theory Scalia espouses that I am forced to agree with is that any interpretation of a commerce clause (or other clause power) that results in there being no effective limitation on commerce clause power is, by definition, an incorrect interpretation.

    God knows he's an unprincipled hack, but he's right about that.

    Pug

Statistics are no substitute for judgement. -- Henry Clay

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