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Does Net Neutrality Violate the Fifth Amendment?

CmdrTaco posted more than 3 years ago | from the constitution-guarantees-short-sleeve-shirts dept.

The Courts 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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341 comments

The title (0)

Anonymous Coward | more than 3 years ago | (#33110404)

The title makes no sense.

Re:The title (4, Funny)

WrongSizeGlass (838941) | more than 3 years ago | (#33110418)

The title violates one of the grammar amendments.

Re:The title (1)

rjk94 (1240212) | more than 3 years ago | (#33110478)

Does Net Neutrality Violates Can Has Grammar?

Re:The title (2, Funny)

WrongSizeGlass (838941) | more than 3 years ago | (#33110518)

Ralphie Wiggam: Me fail English? That's unpossible!

Re:The title (1)

interval1066 (668936) | more than 3 years ago | (#33110886)

Ralphie, dressed up as a podium so the school could save money: "I'm a furniture!"

Re:The title (0)

Anonymous Coward | more than 3 years ago | (#33111082)

Note to future readers: the title of the article when it was released was "Does Net Neutrality Violates the Fifth Amendment?

It looks like someone took the original title ("Net Neutrality Violates the Fifth Amendment?") and just popped a "Does" onto the front.

Re:The title (2, Insightful)

MoFoQ (584566) | more than 3 years ago | (#33110612)

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 (5, Insightful)

mysidia (191772) | more than 3 years ago | (#33110898)

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 (3, Insightful)

MattW (97290) | more than 3 years ago | (#33111098)

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 (3, Interesting)

postbigbang (761081) | more than 3 years ago | (#33111294)

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

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

riiiiight (2, Insightful)

Anonymous Coward | more than 3 years ago | (#33110430)

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:riiiiight (2, Interesting)

HangingChad (677530) | more than 3 years ago | (#33111088)

Bullshit!

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

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

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

Seizures under Emminent Domain (0, Insightful)

Anonymous Coward | more than 3 years ago | (#33110440)

do not require just compensation.

This whole approach smacks of ignorance.

Not all private (4, Interesting)

AJWM (19027) | more than 3 years ago | (#33110450)

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 (5, Insightful)

Moryath (553296) | more than 3 years ago | (#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 (4, Insightful)

icebrain (944107) | more than 3 years ago | (#33110766)

Hell, it'd be one of the few claims of authority under the IC clause that's actually legit.

Re:Not all private (0, Insightful)

Anonymous Coward | more than 3 years ago | (#33110880)

*sigh*

I should just skip law related articles on /. No one on /. knows anything about the law.

GP is just completely wrong, even though everyone on /. is parroting this. All property rights come from the government. So if the fifth amendment didn't apply to property rights that came from the government, the fifth amendment would have zero applicability.

And the commerce clause *does not* trump the fifth amendment. Generally, later passed laws trump earlier passed laws, even at the Constitutional level. So the Fifth amendment generally trumps the commerce clause, because the fifth amendment was passed later. Additionally, with the wide interpretation that the Supreme Court has given to the commerce clause, if the commerce clause did trump the fifth amendment, the fifth amendment would have no legal effect.

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!

Please don't comment on legal matters when you have no idea what you're talking about. You just make the signal to noise ratio far worse.

My final comment is that I don't think a fifth amendment challenge to network neutrality stands any chance, but not for any of the reasons stated by /. posters.

Re:Not all private (3, Interesting)

Moryath (553296) | more than 3 years ago | (#33110942)

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

Government: We're taking your farm under the commerce clause.
Farmer: But the fifth amendment!
Government: Commerce clause trumps. Your farm affects interstate commerce. You lose, haha!

Obviously you didn't see the eminent-domain cases a few years back where the Supreme Court ruled, under "interstate commerce", that a state taking people's homes away to build a "business park" for a stripmall and factory in order enlarge their tax base was legit thanks to the IC clause.

According to current SC precedents, just about NOTHING trumps the IC Clause.

Re:Not all private (1)

ArsonSmith (13997) | more than 3 years ago | (#33111034)

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

Re:Not all private (1)

Moryath (553296) | more than 3 years ago | (#33111290)

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 (-1, Flamebait)

Anonymous Coward | more than 3 years ago | (#33111056)

Yeah, except that 99.9% of the time I use the Internet, I'm not buying anything. Good try, corporatist toadie.

Re:Not all private (1)

Moryath (553296) | more than 3 years ago | (#33111186)

YOU may not be buying anything. But someone out of state bought advertising space somewhere you went.

Re:Not all private (1)

jythie (914043) | more than 3 years ago | (#33111308)

IC Clause has little to do with actual direct commerce. All they have to show is that whatever is being regulated can effect inter state economies. For instance, one of the early landmark cases had to do with a farmer growing materials for his own private use....

Re:Not all private (4, Informative)

DreamsAreOkToo (1414963) | more than 3 years ago | (#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 (4, Insightful)

WrongSizeGlass (838941) | more than 3 years ago | (#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 (5, Insightful)

yincrash (854885) | more than 3 years ago | (#33110640)

Discrimination for most situations is not illegal.

Re:What A Crock (0)

Anonymous Coward | more than 3 years ago | (#33110716)

Discrimination for most situations is not illegal.

But neither is it a constitutional right.

Re:What A Crock (1, Interesting)

Anonymous Coward | more than 3 years ago | (#33111068)

The fourth amendment is all about discrimination.

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

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

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

Re:What A Crock (0)

Anonymous Coward | more than 3 years ago | (#33110798)

it should be

Re:What A Crock (2, Interesting)

AHuxley (892839) | more than 3 years ago | (#33110926)

The whole net works on the fact that all packets just flow. If every isp, university, .com, media company started to slow, shape, charge, then so would their packets.
Most on the internet are telcos, isp's or have massive peering deals at some end and pay up for access.
The property aspect seems to be some real stretch to muddy the water.
Service providers’ property ends with peering ie other isp's - its all in bulk and all paid for as a swap or cash or some best effort deal.
If they dont want to be part of the internet, be a massive private network, rail, banks ect and charge, shape as needed.

Re:What A Crock (0)

Anonymous Coward | more than 3 years ago | (#33111078)

They just need to define a "Gay, Lesbian, Bi-Sexual" bit in the IP header and problem solved! :)

taxpayers (4, Interesting)

Anonymous Coward | more than 3 years ago | (#33110458)

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

Strictly speaking (0)

Anonymous Coward | more than 3 years ago | (#33110462)

Shouldn't the good professor himself consider taking the 5:th?

Just cite the War On Drugs(tm) (-1, Offtopic)

Anonymous Coward | more than 3 years ago | (#33110466)

Thanks to the WOD, the feds can get away with just about anything regarding "private" property.

Maybe for wireless carriers. (5, Interesting)

LWATCDR (28044) | more than 3 years ago | (#33110474)

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.

Re:Maybe for wireless carriers. (2, Informative)

C10H14N2 (640033) | more than 3 years ago | (#33110678)

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

Re:Maybe for wireless carriers. (1)

steelfood (895457) | more than 3 years ago | (#33111140)

It depends then on the terms of the lease, i.e. what's written on the contract.

Re:Maybe for wireless carriers. (1, Interesting)

Anonymous Coward | more than 3 years ago | (#33110864)

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

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

I don't get it... (3, Insightful)

mcgrew (92797) | more than 3 years ago | (#33110486)

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:I don't get it... (2, Insightful)

Anonymous Coward | more than 3 years ago | (#33110630)

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.

Re:I don't get it... (0, Redundant)

shentino (1139071) | more than 3 years ago | (#33110672)

Roads are public property.

Wires are not.

Re:I don't get it... (3, Insightful)

natehoy (1608657) | more than 3 years ago | (#33110998)

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 which net neutrality could be considered a logical extension, were part of the package that companies signed up for when they demanded the government grant them a monopoly and use public powers to benefit a private company.

Don't like the idea of the wires the government helped pay for which are now residing in a public right of way being regulated? Pull your fucking wires out and refund the money the government paid to help you run then, or abandon the wires. Let someone else have a shot at it.

You can have the monopoly you demanded and accept regulatory and financial assistance from the government, or you can avoid regulation. PICK ONE. Figure out how to run your wires without asking the government to help you and without involving any public resources whatsoever, and you can do what you like with those wires.

Ironic, is it not, that the same companies that demanded the government exercise eminent domain in order to force landowners to allow those wires are now claiming that those selfsame wires are inviolate private property and that the regulations they accepted in return for government intervention to grant them their monopoly is somehow an exercise in eminent domain?

Even if it is, so what? "He who lives by the sword..."

Re: I believe they are... (2, Interesting)

colinnwn (677715) | more than 3 years ago | (#33111006)

Wires are public property when public funds subsidize them, or legislatively mandated customer fees provide reimbursement to the telecom companies for building FTTH.

"Private" is different, when commerce is involved (4, Interesting)

Theaetetus (590071) | more than 3 years ago | (#33110726)

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.

Re:I don't get it... (4, Insightful)

buback (144189) | more than 3 years ago | (#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

Simple answer (4, Informative)

Gudeldar (705128) | more than 3 years ago | (#33110490)

No.

Complex Answer (2, Funny)

twoallbeefpatties (615632) | more than 3 years ago | (#33110966)

No, nix, nil, zilch, zip, nada, null, nuh uh, no way, incorrect, not kosher, wouldn't fly, not good enough for government work, good luck with that.

Re:Simple answer (4, Insightful)

imakemusic (1164993) | more than 3 years ago | (#33111022)

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.

Re:Simple answer (0, Flamebait)

e065c8515d206cb0e190 (1785896) | more than 3 years ago | (#33111024)

How can this be modded "Informative"?

I understand that folks on /. don't want their p2p/voip bandwidth throttled (I know the issue is more complex than that, but I suppose it's the primary reason why everyone is so riled up, not concerns for competition). But how can someone think it's as easy as "yes" or "no" and have followers go "hell yeah, your answer was informative"? If I was a business, say an ISP, I wouldn't like at all the government to tell me I can't do QOS for useful and non-harming purposes, such as optimizing routes, or giving priority to DNS traffic, etc. If I'm paying for the pipes, I wouldn't accept that the government runs them. I believe one possible solution is to somewhat force ISPs and others to transparency, and let customers decide. Although I'm not an expert, so I would by no mean expect to have all the information to come up with the best decision.
What is at stake here is ensuring proper competition, customer protection and respecting basic rights enshrined in the constitution. Not ensuring you get the max bandwidth for your pr0n2peer.

Just nationalize the copper then (5, Interesting)

FreeUser (11483) | more than 3 years ago | (#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.

Re:Just nationalize the copper then (1)

deapbluesea (1842210) | more than 3 years ago | (#33110718)

Kind of like our national highway system...

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!

Re:Just nationalize the copper then (1)

FreeUser (11483) | more than 3 years ago | (#33111046)

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.

Re:Just nationalize the copper then (1)

Mongoose Disciple (722373) | more than 3 years ago | (#33110800)

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 right and still clearly lose.

"Just compensation" (2, Insightful)

Anonymous Coward | more than 3 years ago | (#33110510)

"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.

Re:"Just compensation" (0)

Anonymous Coward | more than 3 years ago | (#33110810)

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.

Re:"Just compensation" (1)

NNKK (218503) | more than 3 years ago | (#33111168)

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. (1)

IMightB (533307) | more than 3 years ago | (#33110512)

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.

Re:I'd have to say no. (1)

samjam (256347) | more than 3 years ago | (#33110582)

And tell 'em to stop closing down municipal networks which would compete with them

No ability to regulate? (5, Insightful)

Glasswire (302197) | more than 3 years ago | (#33110552)

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? (4, Insightful)

QuantumRiff (120817) | more than 3 years ago | (#33110866)

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!

They already surrendered their right (1)

MessedRocker (1273148) | more than 3 years ago | (#33110554)

"In effect, the government has forced one party to give a permanent easement to another party, destroying the first's "right to exclude.""

They surrendered their right to exclude when they agreed to join a network not controlled by any one ISP called the Internet.

I can has justice? (1)

Sockatume (732728) | more than 3 years ago | (#33110556)

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

Walls (1)

C_Kode (102755) | more than 3 years ago | (#33110564)

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.

Gibberish (1)

thetagger (1057066) | more than 3 years ago | (#33110572)

Wow, does that even mean anything? It's like a metaphor of a metaphor.

Well, that was stupid. (3, Interesting)

chaboud (231590) | more than 3 years ago | (#33110574)

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.

Re:Well, that was stupid. (1)

shentino (1139071) | more than 3 years ago | (#33110742)

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

Re:Well, that was stupid. (1)

natehoy (1608657) | more than 3 years ago | (#33111074)

Show me a company that owns all of their wires on all of their own property, that does not benefit from the use of any public resources, and I'll show you somewhere that the First Amendment does not apply.

Not one of the current Internet, Telephone, or Power providers I've ever heard of can make that claim. They are regulated monopolies propped up by public resources, and as such must respect the regulations they accepted with their government-mandated rights of way they demanded, and the money they demanded to help pay to string the wires.

Re:Well, that was stupid. (1)

chaboud (231590) | more than 3 years ago | (#33111292)

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.

Mod parent up (0)

Anonymous Coward | more than 3 years ago | (#33110818)

A common carrier must take any traffic presented to it. The first case I can think of was with railways. The courts said that the railways couldn't discriminate among customers. They had to sell space on boxcars to everyone at the posted rate.

The principle has been extended to telcos. I don't see why it doesn't apply to ISPs.

To make the bogus eminent domain argument you have to upset cases that go back more than a hundred years. It sounds like the kind of argument a lawyer makes with not much hope of it working. In many respects a courtroom is a crapshoot. You never know when a really off the wall argument might work.

Biased much? (3, Insightful)

TubeSteak (669689) | more than 3 years ago | (#33110620)

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.

Re:Biased much? (1)

hansamurai (907719) | more than 3 years ago | (#33110840)

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

Re:Biased much? (1)

bsane (148894) | more than 3 years ago | (#33111080)

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!!! :-) )

The Internets (0)

Anonymous Coward | more than 3 years ago | (#33110638)

Who is this guy, Ted Stevens? Seriously, he's suffering from a "Series of Tubes" mentality.

The net is a series of agreements. Business and technical agreements. Most of which are applicable to interstate commerce. They can be regulated. Get over it.

Standard Political Boilerplate (3, Interesting)

Walter Wart (181556) | more than 3 years ago | (#33110666)

According to Conservative/Libtardian dogma ANY regulation of any sort is a government "taking".

Ultra capitalism? (0)

Anonymous Coward | more than 3 years ago | (#33110824)

Leave it to a lawyer to try to equate "imagined position of leverage" with property, no matter how abstract. This makes about as much sense as saying that the laws against blackmail and extortion are a 'taking' of mobster property.

Publicly owned Internet? (4, Insightful)

robot256 (1635039) | more than 3 years ago | (#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.

Oh... Except for the fact... (1)

Sfing_ter (99478) | more than 3 years ago | (#33110704)

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.

Fifth amendment? Really? (0)

Anonymous Coward | more than 3 years ago | (#33110744)

Why is telling ISP's what they can do with their copper a fifth amendment issue while telling people to let ISP's string their copper from poles installed on their property, uncompensated by anything more than the "public good," not a fifth amendment issue?

Funny you should mention that... (4, Insightful)

fuzzyfuzzyfungus (1223518) | more than 3 years ago | (#33110756)

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.

Re:Funny you should mention that... (1)

natehoy (1608657) | more than 3 years ago | (#33111112)

and tell them that they have a week to either agree to our terms or remove their equipment.

Don't forget that, in many cases, the government also helped fund the wiring. So you should add "and refund any taxpayer dollars they have received to fund it" after "remove their equipment".

The constitution doesn't matter (1)

tchdab1 (164848) | more than 3 years ago | (#33110774)

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.
I want it to be a place where information and access is shared and available equally.
If someone else wants it instead to be a place they can make as much money as possible by whatever advantage they can gain, then we should discuss and determine the outcome.

Re:The constitution doesn't matter (1)

magical liopleurodon (1213826) | more than 3 years ago | (#33111318)

not to mention that the constitution isn't enforced much these days anyway. Patriot Act? Obamacare? How about the Feds raiding weed farms in California?

Sure sure, people will mention the commerce clause, whose meaning has conveniently (for the government) changed over the years. Any lawyer will tell you that when a law is passed, it retains the meaning it had when it was passed -- it's only with the constitution that it magically changes. This is why we needed a constitutional amendment to ban alcohol, but not to ban weed; it was understood that the federal government was not granted the authority by the states to ban substances, that is until the Supreme Court decided that it did have the power. btw, go California for standing up to the feds!!!!

Probably the most recent examples of violating the constitution are Arizona trying to enforce the border (can't blame them for trying)
and, here's my favorite, the federal government trying to sue Arizona. They can't actually do that, the states have sovereign immunity and the lawsuit is a violation of the 11th amendment, but whatever.

Honestly, we had more freedom and paid less taxes when we were under British rule. I'd take this thought further, but I don't need the SS showing up at my door

The US paid for most of the internet in America (1)

Dan667 (564390) | more than 3 years ago | (#33110828)

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... (1)

Jaysyn (203771) | more than 3 years ago | (#33110848)

Wow.. .that is really, really, really stretching it, isn't it?

So can I get compensated too? (2, Interesting)

w3woody (44457) | more than 3 years ago | (#33110870)

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 (1)

MobyDisk (75490) | more than 3 years ago | (#33110940)

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.

What is this? Some Rand Paul thing? Screw that (1)

countertrolling (1585477) | more than 3 years ago | (#33110972)

There's this little thing about "public accommodation" at play here, like in the civil rights laws. Equal treatment is the rule we must apply. We don't let the phone or electric companies prioritize their customers... I hope we don't. We need to turn the ISPs into common carriers.

He's a Troll (5, Interesting)

Wannabe Code Monkey (638617) | more than 3 years ago | (#33111026)

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

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

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

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

Re:He's a Troll (0)

Anonymous Coward | more than 3 years ago | (#33111322)

Different Daniel Lyons. This one is a professor of law at Boston College, not a reporter for Forbes.

What next? (1)

AHuxley (892839) | more than 3 years ago | (#33111092)

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 motion.

Silly Rabbit (1)

the eric conspiracy (20178) | more than 3 years ago | (#33111114)

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.

Here's my argument against Net Neutrality (1)

Yungoe (415568) | more than 3 years ago | (#33111126)

There is very very little that the US Federal Government does well. Everything they touch seems to turn to crap. If they start regulating the internet under the guise of "Fairness" it will go from rocking to suck very fast.

As for the argument of telco monopolies, they are rapidly becoming a thing of the past. Where I live, which is admittedly a population center, I have no fewer than 4 choices for any of my 3 telco services (Phone Internet and TV). Even my family members who live in rural areas have at least 3 choices for TV, 2 choices for phone and soon will have 2 realistic choices for high speed internet services.

I say that the feds have enough power, lets not enable them any more.

Re:Here's my argument against Net Neutrality (1)

emagery (914122) | more than 3 years ago | (#33111256)

I can't quite agree... federal government run by corporate special interest almost willfully turns things to crap since they'd rather be given the reigns to run them [at a profit] themselves. There are myriad periods of history where the gov did incredibly difficult things incredibly well... it's all about who is in the gov and what it takes to get elected. I think you have fair reason to be concerned, but are focused too much on the blunt object rather than on they who are wielding it.

Not Dan Lyons! (0)

Anonymous Coward | more than 3 years ago | (#33111142)

Who ever could have guessed someone named Dan Lyons [wikipedia.org] is an asshole?

And Kids That is why (1)

mjwalshe (1680392) | more than 3 years ago | (#33111158)

the USA can't have nice things like a working mobile phone system

You keep on using that amendment... (1)

jparker (105202) | more than 3 years ago | (#33111162)

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 boarding house, you can't prevent soldiers from staying. You're not required to run a restaurant, but if you do, you can't disallow a given race/religion/other protected class.

There are many good arguments both for and against Net Neutrality legislation. This is not one of them.

Pathetic Legal Argument (0)

Anonymous Coward | more than 3 years ago | (#33111212)

If you extend Lyon's inane logic to the FCC domain as a whole, then it is an illegal taking for the FCC to regulate what frequencies/bandwidth you must use for communications.

Utter trash.

forgive me if I've simply heard wrong, but... (1)

emagery (914122) | more than 3 years ago | (#33111218)

...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 times change--as things occur that the founding fathers could not have guessed at--we would be able to maintain our freedoms (which, mind you, come with equal responsibilities, don't get me wrong.) Submitter's having to ask this question tells me something is wrong with the way things are headed.

Nope (1)

quinto2000 (211211) | more than 3 years ago | (#33111326)

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.
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