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."
Re:Best way to fix it (Score:2, Interesting)
Without government subsidies and other involvement, there would be no internet.
{Citation required}
Re:Best way to fix it (Score:2, Interesting)
And my eternal youth?
You'd be a lot more likely to have it if the government didn't impose vastly expensive regulations on anyone who tries to provide it. When dramatic life extension becomes possible you'll probably have to fly to Mexico or Thailand to get the treatment if you don't want to die before it becomes legal in America.
There is absolutely no doubt that pharmaceutical regulation has killed at least hundreds of thousands of people, and probably far more. One drug that saves 10,000 lives a year being delayed by a decade of testing is 100,000 dead by itself.
Just like healthcare... (Score:5, Interesting)
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.
Re:Best way to fix it (Score:1, Interesting)
Every time the free market tries to do anything, it fucks up the economy. Every. Single. Time.
The Truthiness is strong with both of us.
Re:Best way to fix it (Score:2, Interesting)
Re:he's right, but.... (Score:2, Interesting)
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 call completion. It's a system that's worked well for decades and the international phone system has not fallen apart because of it. The Internet will survive, as well.
Re:Best way to fix it (Score:2, Interesting)
Building infrastructure is one of the few areas of where government involvement in private enterprise is reasonable. That's why public utilities fall under a special set of rules and regulation and end up being quasi-governmental entities. Unfortunately, telecom has even more layers of special rules so it's ripe for corruption.
I believe the answer is to force the segregation of infrastructure providers and service providers - very similar to how many want Microsoft's OS and application divisions to be separate companies. Infrastructure providers can own the transmission medium (cables, pipes, etc), but not the content carried and cannot be a content provider. The infrastructure must be open for all service providers to use.
In many areas, this model is used to provide natural gas services. This is similar to the early railroad model in the US, but the railroads were allowed to give preferential treatment and rates to sister companies.
solution in search of a problem (Score:2, Interesting)
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 iPhone contract and go get a droid on Verizon...and I work for AT&T! I can't imagine their other customers would be more loyal.
No Surprise Here (Score:4, Interesting)
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.
Re:he's right, but.... (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:Best way to fix it (Score:4, Interesting)
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.
Re:Best way to fix it (Score:3, Interesting)
And who knows, had private enterprise designed the internet from the start, it could have more elegant solutions and such.
If private enterprise designed the internet, we would have had an internet designed by Microsoft, DoubleClick, and Real. Jesus, that makes me shudder. We all benefit every single day because the internet was designed by idealistic hippies who believed in sharing, equality, and freedom, even at the expense of profits. The internet is so good specifically because it was designed by academics and government.
Re:Best way to fix it (Score:3, Interesting)
I'm sure there are a couple examples, but I can't actually think of any standards which arose from unregulated markets. Insofar as standards benefit consumers (and that is insofar VERY far indeed), the credit is almost entirely due to unfree, regulated markets.
Re:Best way to fix it (Score:3, Interesting)
I own what I can defend from taking.
Interesting theory... but it's not really ownership if anyone can just organize a big enough gang to steal it with no repercussions [wikipedia.org] (no matter how good your defenses are, someone will always be able to get more people than you can handle). You "owning" something means that you are exclusively entitled to possess and use it, and that such rights don't disappear just because someone failed to respect them [wikipedia.org].
Re:Common carrier (Score:1, Interesting)
The problem with Common Carrier status for network providers is that then they can't block outbound SMTP to help control spam, can't disconnect customers for network abuse, etc. (all the TOS/AUP type stuff). Typically, the only reason a common carrier can stop service is non-payment or by court order.
Also, not all ISPs got subsidies. I work for an independent, privately-owned ISP. We wholesale a telco's DSL, which might have been subsidised, but our network and our other services are all ours. We have point-to-point circuits on the telco and cableco networks, but those weren't subsidised by the government. Why should anybody have any right to tell us what we can do with it? If we do something stupid, our customers can leave.
Re:Best way to fix it (Score:1, Interesting)
There is no "government regulation of internet traffic" in net neutrality. You've had that pointed out to you over and over, and every time you have ignored that point. By ignoring it you admit that you can't rebut it, which is the same as conceding that it is absolutely true. Therefore, you are knowingly and willing LYING every time you repeat that assertion.
Re:he's right, but.... (Score:3, Interesting)
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.
Re:Next Week on a Very Special "D-Bag Lawyer" (Score:3, Interesting)
Art. IV, Sec. 4 empowers and obligates the US federal government to guarantee a specific form of government for a State once Congress has it to the Union (note also, related to this, that the consent of a State is nowhere required in the Constitution for it to be joined to the Union in the first place; that power is reserved to the Congress alone in Art. IV, Sec. 3.) This guarantee clearly is not for the benefit of the State government (who it operates directly against) and so cannot reasonably be interpretted in any way except to include a prohibition on the state government opting out by any means, including secession (a power of secession would also render as a dead letter the exclusive grant of power to Congress to join States to the Union.) This guarantee, then, obviously prohibits states from opting out of federal oversight of their form of government. Consequently, such opting-out via secession is a power prohibited by the Constitution to the States, and is thus not within the "powers not delegated to the United States by the Constitution, nor prohibited by it to the states".
Therefore, it is not reserved either to the States, or to the people, by the 10th Amendment.
Re:Best way to fix it (Score:3, Interesting)
At the time there were exclusive deals so there was only one seller of the iPhone in both the UK and US.
In the US you can't take your phone to another network or you have to put up a fight. Where as I don't have to. Not that I really do take my phone across networks. It's just too easy to get a new phone for no cost.
It's not just the iphone and some sort of Apple elitist pricing like their computers. In general it just seems more expensive and it seems fairly standard to pay something for the phone while still having to take out a contract.
A quick look at verizon shows only 7 phones that can be had for free on a 2 year contract and they're all old phones and it would appear their cheapest package is $39.99 and that's just for talking. Where as for $42.92 I got a completely free Android G1 when it came out on a 18 month contract with unlimited internet, unlimited texts and 800 minutes which I only use when I call people because I receive calls for free. Plus the phone was unlocked from day one without me having to ask so I can put any SIM card in it that I want. The reason is because standards have been set and they have to operate in a more open and cooperative way so really the only way to draw customers in is with better deals rather than locking them in with a different network or closed phone.
CDMA might have a superior signal but I have no problems with my network and I prefer being able to take my phone to whoever has the best deal. That and if I want to take my phone abroad I will have more luck with GSM. I've not seen anything that says CDMA is by far a clear winner and I believe this link is a fair comparison.
http://www.post-gazette.com/pg/07119/781379-371.stm [post-gazette.com]
GSM came out of Finland and was helped by multiple funding EU funding which sort of proves my point that the best option doesn't come from corporations only or the government only but instead a combination of both.
The bulk of the US population isn't that spread out. By far most people live along the coasts and believe it or not if you go outside of cities, like London not everyone lives right beside each other in Europe. I live out in the fens so most of the land around my small village is flat farm land but I get 3G and 8 meg broadband. Where I lived in the US was a fairly similar area with similar spread between towns / villages and my only option, if I still lived there would be dial-up and a costly mobile phone which may or may not have a decent connection.
Thanks to the land being cheaper here (because there isn't much here) they're going to put a data center on the outskirts and loads of fiber to connect it up with London so I can probably look forward to a fiber connection in a few years.
I'm not sure if I can think of anything that came about in modern day America where corporations have had a lot of control or full control and they have competed through providing a superior services with competitive prices rather than lock in and anti competitive actions.