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The Courts

Does Net Neutrality Violate the Fifth Amendment? 341

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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  • Simple answer (Score:5, Informative)

    by Gudeldar ( 705128 ) on Monday August 02, 2010 @11:06AM (#33110490)
  • by C10H14N2 ( 640033 ) on Monday August 02, 2010 @11:20AM (#33110678)

    The wireless spectrum is publicly owned and is only leased to private interests.

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

    by DreamsAreOkToo ( 1414963 ) on Monday August 02, 2010 @11:22AM (#33110714)

    Another argument:

    Since the infrastructure is owned mostly by the public, removing net neutrality is a regulatory taking against all the public and therefore having anything other than net neutrality would require just compensation to all the public.

  • Re:Not all private (Score:4, Informative)

    by PatHMV ( 701344 ) <> on Monday August 02, 2010 @12:04PM (#33111354) Homepage
    Recursive sigh... Yes, under the Kelo decision, a state could take private property for a "business park." This had NOTHING to do with "interstate commerce," as it was the local government, not the federal government, taking the property. The Kelo decision thus does NOT say anything about the "IC Clause" trumping anything.

    PLUS, the town government taking the property had to pay JUST COMPENSATION for the property. They couldn't just take it away and not pay for it. Sheesh. The ignorance of the law on /. is simply breathtaking.
  • Re:Not all private (Score:3, Informative)

    by trentblase ( 717954 ) on Monday August 02, 2010 @12:05PM (#33111370)
    Triple sigh. The commerce clause and takings clause do not "trump" one another. The commerce clause is concerned with whether Congress has the POWER to regulate a certain activity. The takings clause is concerned with whether Congress must COMPENSATE those affected by such activities. Thus, the government may have the power to shut down a railroad line under the commerce clause, and they may still need to compensate the railway under the takings clause.
  • Re:Not all private (Score:2, Informative)

    by Anonymous Coward on Monday August 02, 2010 @12:10PM (#33111424)

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

    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.

    Sigh*3. Registered users who don't know things about law should go away too.

    No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The fifth amendment doesn't prohibit taking away people's homes. It prohibits taking them away without just compensation.

    The Supreme Court case you referenced doesn't say that the Fifth amendment is invalid because of the ICC, it says that enlarging the tax base counts as a valid "public use" under the Fifth amendment.

    It's the Tenth amendment (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.) that causes the ICC to show it's head frequently. Before the federal government can act, it needs explicit authority to act, otherwise it runs afoul of the Tenth amendment. The ICC is what's usually used to allow the Federal government to act (because almost anything affects interstate commerce, the Fed can use that as a rationale to regulate it.

    The States aren't limited by the ICC (who would make solely intra-state laws otherwise?), so the ICC means bupkis to "a state taking people's homes away". They are limited by the Fifth amendment, though.

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

    by Moryath ( 553296 ) on Monday August 02, 2010 @12:22PM (#33111610)

    Oh really?

    You realize some of the biggest "corporate masters" pushing for Net Neutrality are Microsoft, Google, etc - right?

    And that just as many Democrats - Joe LIEberman, these 73 asstard bastards [], Jay Rockefeller who recently put forth the "emergency censorship for Da Prezzy []" bill - hate Net Neutrality?

    Discuss in reality. There's no reason for anyone to vote this on political lines, and the whole "pleasuring their corporate masters" thing is just fucking stupid. The question is whether a certain few Content Cartels - Cox(sucker) Cable, Comcrap, TW, AOHell, etc - can try to run an extortion scam on content providers like Hulu and Youtube.

  • by Mr. Underbridge ( 666784 ) on Monday August 02, 2010 @01:14PM (#33112310)

    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 [], which said that the interstate commerce clause allows the government to establish regulations that prevent discrimination in commerce.

    Right. This guy is trying to pull a fast one, and everybody gets bogged down in the details, but there's also this: if his interpretation is legit, it should exist within the current legal landscape at large. Presumably, he's not trying to prove that the vast majority of regulations currently on the books are illegal. Given that, how is the proposed law substantially different than existing regulations that have extremely similar effects? His argument does not seem unique to net neutrality, and seems to apply to a whole lot of things in ways that the Congress and Court don't seem to agree.

    Of course, since the guy's a professor, he's probably just trying to stir the pot, and seems to have done so successfully.

  • Re:riiiiight (Score:2, Informative)

    by packetmonger ( 1041800 ) on Monday August 02, 2010 @04:57PM (#33115640)

    Shockingly, it's a bit more complicated than that.

    There are, in fact, cases where people have successfully argued that enacting regulations on previously owned assets constitutes a taking. This has been litigated with regard to your example of zoning regulations.

    The Supreme Court most recently ruled on this area of law last month, in Stop the Beach Renourshment vs FDEP []. In this case, the Court ruled that courts, not just executive or legislative authorities can in fact engage in lawful takings- and therefore require renumeration.

    In Lucas v. South Carolina Coastal Commission (1992), the court refined a number of earlier decisions going back to at least 1926. Lucas established a very narrow interpretation of takings- in that all economic use of a property had to be restricted. There are, again shockingly, different opinions as to whether this established this as the only test or was a minimum. A more recent case is working its way through the system that tests the Lucas standard, and compares it to the earlier "Penn Central" balancing test which weighs- "the economic impact of the regulation on the claimant, and, particularly, the extent to which the regulation has interfered with distinct, investmentbacked expectations,” and “the character of the governmental action”.

    In short, anyone who thinks this is obvious is letting their opinions get in the way of their analysis of the law and Court opinions. The Supreme Court has demonstrated in "Stop the Beach" that it is interested in moving to greater restrictions on compensation rights for those lawfully taken from, and the Penn Central balancing test would seem to be something that could reasonably be argued to require compensation for economic loss caused by restricting the use of an asset.

    As a political matter, whether the government has the authority to do something or not should not be the only test we employ. We should consider the effects of the action on the general economy as well as the fairness of those effects.

    This becomes very clear when you look at situations like the Kelo case- a taking by government of private land (with compensation) for use by another private entity. The court ruled this was acceptable, but most people think this is an unreasonable thing to do. That particular case makes a strong point of the damage that government authority can do when applied poorly- the Kelo house was moved, at great cost and legal effort, and the land now is an empty field, undeveloped- in short nothing useful occurred, at great expense. The government had the right to do something, but it was a bad decision.

    Closer to this issue is my own example. I started working on the Internet in '91- before the Mozilla browser existed. I spent almost all of the '90's working at building, re-architecting, merging and running ISP's and NSP's. I can attest that coming up with a definition of what we were selling, particularly on leased lines that were equivalent to a significant portion of our upstream capacity was a frequent point of discussion and effort. I also will tell you that I got out of that business as I started to see that various regulatory forces were coming to bear. I didn't want to be part of a market where winners and losers get chosen, even in part, by political considerations.

    Now, without being to cocky, I think most observers would say that I've contributed to the creation of quite a bit of economic prosperity in the last 20 years. I did this, despite changing the direction of my career, in large part because of incoming regulations.

    How many people like me jumped out of that business? I know a few others personally (it was, and still is, a rather libertarian crowd).

    Lets say it was 5% of the top 200 engineers running the various ISP's at the time. What was the economic impact of that? What was the impact on the development of the Internet?

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