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.'"
riiiiight (Score:2, Insightful)
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)
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 f
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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.
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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:5, Insightful)
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.
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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)
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)
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)
Hell, it'd be one of the few claims of authority under the IC clause that's actually legit.
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The internet may be interstate, but my deal with my service provider is entirely within, not just my state, but my city.
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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)
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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:4, Interesting)
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.
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Sayeth the pot to the kettle.
You would be talking about
Re:Not all private (Score:4, Informative)
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
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Re:Not all private (Score:5, Interesting)
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.
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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 cou
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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
Re:Not all private (Score:5, Insightful)
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.
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YOU may not be buying anything. But someone out of state bought advertising space somewhere you went.
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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".
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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 [arstechnica.com], Jay Rockefeller who recently put forth the "emergency censorship for Da Prezzy [cnet.com]" 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 Cont
Re:Not all private (Score:5, Informative)
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.
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Who is doing the taking in this scenario?
What A Crock (Score:4, Insightful)
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)
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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
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taxpayers (Score:4, Interesting)
What if taxpayer money was used to pay for all or part of the privately owned infrastructure?
Maybe for wireless carriers. (Score:5, Interesting)
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.
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The wireless spectrum is publicly owned and is only leased to private interests.
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It depends then on the terms of the lease, i.e. what's written on the contract.
I don't get it... (Score:3, Insightful)
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.
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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.
"Private" is different, when commerce is involved (Score:5, Interesting)
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.
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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
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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
Re:I don't get it... (Score:5, Insightful)
... 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
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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
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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.
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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
Re: I believe they are... (Score:3, Interesting)
Simple answer (Score:5, Informative)
Complex Answer (Score:3, Funny)
Re:Simple answer (Score:5, Insightful)
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.
Just nationalize the copper then (Score:5, Interesting)
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.
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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
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You mean the system where each state has to pay the bulk of the maintenance and many can't even keep the roads to a state that won't rip the undercarriage out from under you? Sounds like a great idea!
Yes. It is vastly better than the monopolistic privately-owned infrastructure that has left the US with abysmal internet connectivity when compared to the rest of the developed world, and like the highway system, would be a huge boon to business.
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"Just compensation" (Score:2, Insightful)
"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.
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It is a bit ridiculous to argue that they are violating the first amendment by not supporting net neutrality. While I am a proponent of net neutrality myself, we need to keep the arguments for it logical. The first amendment prohibits government from restricting the right of free speech. It doesn't restrict a private corporation from doing the same over the infrastructure that it owns. We need to cite actual, applicable rules or lobby for new, relevant ones to be created.
So long as exclusive rights to land and spectrum continue to be auctioned off by governments to the highest bidder, said highest bidder is effectively a government actor and should be subject to all constitutional restrictions placed on the government.
I'd have to say no. (Score:2)
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.
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And tell 'em to stop closing down municipal networks which would compete with them
No ability to regulate? (Score:5, Insightful)
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:No ability to regulate? (Score:5, Insightful)
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!
I can has justice? (Score:2)
I don't know, Serious Cat, I think they tried translating the Constitution into lolspeak before and it wasn't very popular.
Walls (Score:2)
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.
Well, that was stupid. (Score:4, Interesting)
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.
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The first amendment doesn't apply on private property/wires.
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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)
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.
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Of course they're biased, that's the whole point of their site. They have viewpoints they want to get out to the public.
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What?!
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!!! :-) )
Standard Political Boilerplate (Score:3, Interesting)
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Publicly owned Internet? (Score:5, Insightful)
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.
Oh... Except for the fact... (Score:2)
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.
Funny you should mention that... (Score:5, Insightful)
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 constitution doesn't matter (Score:2)
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.
The US paid for most of the internet in America (Score:2)
Wow... (Score:2)
Wow.. .that is really, really, really stretching it, isn't it?
So can I get compensated too? (Score:3, Interesting)
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.
This argument is a stretch (Score:2)
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)
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.
What next? (Score:2)
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
Silly Rabbit (Score:2)
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.
And Kids That is why (Score:2)
You keep on using that amendment... (Score:2)
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
forgive me if I've simply heard wrong, but... (Score:2)
Nope (Score:2)
Re:The title (Score:5, Funny)
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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:The title (Score:5, Insightful)
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.
Truth in advertising won't save you (Score:4, Insightful)
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:The title (Score:4, Interesting)
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: (Score:3, Insightful)
As much as we wish it did, the Constitution does not prevent Comcast from infringing our right to free speech or to assemble.
Re:The title (Score:4, Insightful)
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.
Re:The title (Score:5, Insightful)
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: (Score:3, Interesting)
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 ri
Re:Government grant (Score:5, Insightful)
Re: (Score:2)
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Google say: http://www.expertlaw.com/library/real_estate/eminent_domain.html#5 [expertlaw.com]