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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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  • riiiiight (Score:2, Insightful)

    by Anonymous Coward

    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.

    • Re: (Score:3, Interesting)

      by HangingChad ( 677530 )


      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 f

      • Re: (Score:2, Insightful)

        by Surt ( 22457 )

        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: (Score:3, Insightful)

          by s73v3r ( 963317 )
          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: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: (Score:3, Insightful)

        by Myopic ( 18616 )

        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.

  • Not all private (Score:5, Interesting)

    by AJWM ( 19027 ) on Monday August 02, 2010 @11:04AM (#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.

    • 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.

      • 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.

      • The internet may be interstate, but my deal with my service provider is entirely within, not just my state, but my city.

        • by Moryath ( 553296 )

          The deals your ISP makes aren't limited to just inside your city or state. The product they sell (access to websites from anywhere, not just in-state) isn't just in-state. Therefore your ISP is covered by the IC clause.

      • 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: (Score:3, Insightful)

          by Fjandr ( 66656 )

          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 jo

    • 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.

  • 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.

    • 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.
      • Re: (Score:3, Interesting)

        by AHuxley ( 892839 )
        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 p
    • Re: (Score:3, Interesting)

      by jythie ( 914043 )
      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...
  • taxpayers (Score:4, Interesting)

    by Anonymous Coward on Monday August 02, 2010 @11:05AM (#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 @11:06AM (#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.

  • 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.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      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.

    • 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.

      • 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.

        You don't have customers paying for access to your visitors in your bathroom. (That sounds a bit more weird than I intended...)

        It's about ISPs wanting to charge the content providers for access to their customers, who

      • Re: (Score:3, Informative)

        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.

        Right. This guy is trying to pull a fast one, and ever

    • 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

      • Re: (Score:3, Insightful)

        by bzipitidoo ( 647217 )

        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 practicali

    • No propery is being taken.

      If regulation was all that was needed for something to be considered taking property of the government, every business that has any kind of federal restriction on it, like selling guns or alcohol, would be "taken" already.

      Seriously, the whole argument is a stretch.

  • Simple answer (Score:5, Informative)

    by Gudeldar ( 705128 ) on Monday August 02, 2010 @11:06AM (#33110490)
  • by FreeUser ( 11483 ) on Monday August 02, 2010 @11:07AM (#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.

    • Really, as a corporation I never want my defense to be, "Oh yeah? Well, the only way you can tell us what to do with our property is just to take it over entirely." Because even if that's true, why draw attention to the nationalization option?

      It's kind of like telling the biggest guy in a bar that he can't stop you from talking to his girlfriend unless he kicks your ass. Or maybe it's more like having right-of-way as a pedestrian in a crosswalk when a Range Rover hits you -- it's possible in life to be r

  • by Anonymous Coward

    "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.

  • Because the government has given them billions to build out infrastructure. Therefore infrastructure is definitely NOT private property. The government merely grant them rights to operate and profit from the infrastructure that they were paid to build. If they want to use this argument, I either want my tax dollars back, or tell them to build their own infrastructure and give the taxpayer paid stuff back.

  • by Glasswire ( 302197 ) <glasswire@gma[ ]com ['il.' in gap]> 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.

  • I don't know, Serious Cat, I think they tried translating the Constitution into lolspeak before and it wasn't very popular.

  • If you build walls everywhere, it will no longer be the Internet. The Internet is what it is today, because those walls only exist when entering private networks. Walling up all the thoroughfares will only damage what exist today.

    The Internet is give and take. If everyone just wants to take, then it will fail.

  • by chaboud ( 231590 ) on Monday August 02, 2010 @11:11AM (#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.

    • The first amendment doesn't apply on private property/wires.

      • by chaboud ( 231590 )

        The first amendment applies to government interference in free speech. Forcing specific ADA requirements on website presentation is a government restriction on speech.

        Whether it be public or private property on which the law applies, it's still the law that we're concerned with.

  • 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.

    • Of course they're biased, that's the whole point of their site. They have viewpoints they want to get out to the public.

      • by bsane ( 148894 )


        Thats not the way people operate! They believe in the one true ideology, therefore their views aren't biased, they're correct!

        Just about everyone is guilty of that, both sides of every debate. (And thats a fact, not my view!!! :-) )

  • by Walter Wart ( 181556 ) * on Monday August 02, 2010 @11:19AM (#33110666) Homepage
    According to Conservative/Libtardian dogma ANY regulation of any sort is a government "taking".
    • Re: (Score:3, Insightful)

      by hedwards ( 940851 )
      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 oth
  • 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.

  • Except for the fact that the "lines" as it were belong to the public, as the public has paid for them to be installed and to be maintained. Check your phone bills - tax for this - tax for that.

    We own those lines - they just seem to forget that when it suits them.

  • 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.
  • The argument that the constitution's protections for private property apply to the internet is a poor one.
    The internet is a device created by commons (Darpa), which over time allowed everyone to use it. The idea of sacred inviolable private property comprising parts of it is hollow, since it does not function except as a whole.
    We need to determine what we want this internet to be, and legislate that. If prior rules of private ownership get in the way, modify them to allow us to create the internet we need.

  • It is not really the property of the telcos, it already belongs to the American People. Problem solved. And Net Neutrality is not about changing anything, it is to prevent a corporate take over of the internet. Net Neutrality is to keep the status quo.
  • Wow.. .that is really, really, really stretching it, isn't it?

  • by w3woody ( 44457 ) on Monday August 02, 2010 @11:31AM (#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.

  • If this argument was true, then we could not have common carrier laws either. Obviously, we would not want the phone company to be able to monitor or modify telephone conversations, and nobody thinks that violates the constitution. This is a huuuuuuggee stretch.

  • He's a Troll (Score:5, Interesting)

    by Wannabe Code Monkey ( 638617 ) on Monday August 02, 2010 @11:42AM (#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.

  • You rent space in a warehouse, carve a statue that sells for millions?
    Will the gas company, electric company, water company and trucking company knock on your door and ask for a share?
    Their private "electrons" helped you make millions, all the pipes, wires, water to clean, shipping... where will the infrastructure for more "electrons" come from if they cannot charge you for profits made ...?
    You rented a space, what you do in it is defined by a contract, not the end result ie the profit per 'electrons' in
  • It think that there are lot of arguments that can be made against the Fifth Amendment position here, mostly through the fact that the government does indeed have the right to regulate interstate commerce.

  • the USA can't have nice things like a working mobile phone system
  • I do not think it means what you think it means.

    But even assuming we're going to let you stretch the Fifth Amendment to say what you think it says, it still doesn't apply. Net Neutrality's not "taking" anything; that would be forcing a company to transmit internet packets whether they wanted to or not. It's just saying that, if you are going to transmit packets, you need to transmit all the ones you're handed without bias. You're not required to quarter soldiers in your home, but if you're running a boardin

  • ...didn't taxpayer money go into establishing a lot of what has since been privatized (and I assume expanded upon, to be fair) and sold off to corporations? Net Neutrality (or some rational variant thereof) should be important enough, frankly, to warrant it's own constitutional amendment equivalent to (whether its an amendment or not) freedom of the press (which is arguably nonexistent now anyways) regardless of what the 5th says. Our system was made to be flexible and editable enough to ensure that, as t
  • No. Almost nothing is a regulatory taking. There's a very narrow area that's protected, and this almost certainly does not fall in that area.

"If it's not loud, it doesn't work!" -- Blank Reg, from "Max Headroom"