No, The Fifth Amendment Does Not Complicate Net Neutrality

from the oh-please dept

I've said it plenty of times before: I don't think that the government should mandate net neutrality, but I'm getting pretty sick of ridiculously tortured explanations for why doing so is somehow illegal. There are plenty of legitimate reasons not to support network neutrality legislation, and I'm amazed that those against it keep trying to make really far out claims. The latest comes to us via Slashdot, which points us to an article claiming that the Fifth Amendment's eminent domain concept in the "takings clause," net neutrality would consist of an unconstitutional "taking." Sorry, I don't buy it. Not even close. You can read the full paper this is based on, written by Daniel Lyons from Boston College, but it the logic is just not there to support the claim.

The key problem is defining the internet as a a private broadband network, when in nearly every case, the broadband infrastructure involved includes tremendous use of government granted rights of ways and other government subsidies. If the telcos actually had built their network entirely on their own and negotiated privately with land owners for rights of way, they might have a point on this one. But they didn't and they don't.

However, the paper pretends that the internet is a purely private network:

The purpose of the "open internet" initiative is to prevent broadband providers from controlling which third-party content and application providers can use their networks to deliver information to end-user consumers. In essence, these third parties receive an unlimited, continuous right of access to broadband providers' private property. This access allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity, all without having to pay the network provider for access. The effect is to appropriate the use of these private networks for the public's benefit, in the form of unfettered and nondiscriminatory access to the content and applications of the consumer's choosing.

Almost none of that accurately represents the situation. Content and service providers are not "invading" (especially not physically) anyone's private network at all. Nothing can be further from the truth. They have, instead, put themselves out on the open internet, and these service providers chose to connect to the open internet allowing their users to request such content. The content and service providers are doing nothing proactive, especially nothing that deserves the grossly misleading "invading" moniker.

Lyons then tries to twist this into a claim that it's like an easement on physical property. Again, this is simply untrue. The third parties are not proactively going onto anyone's network. They have set themselves up and connected directly to the open internet (via their own ISPs to which they pay handsomely for bandwidth) and the only times their content crosses those other networks is when the end users (i.e., the customers of these ISPs) reach out and request that the content be sent to their computer. That's how the open internet works. If the ISPs don't like it, they shouldn't have offered an internet service. To twist this and claim that the internet is somehow a "private network" of these ISPs and service providers who connect to the open internet are somehow "invading" that private network is the height of sophistry.

Effectively, you could take Lyons' twisted reasoning and apply it to nearly any government regulation. Taxes? Clearly an unjustified "taking" of someone's private property. Highway speed limits? An unjustified "taking" of the private owners' use of their own automobile. It's not hard. Try it with some other laws. Lyons tries to get around this by suggesting the key is the "right to exclude." But this is also wrong. It assumes that the ISP controls the wider internet, rather than its own network. Yes, a telco has every right to not connect to the internet. But once it does, it's expected to abide by the overall rules of the internet. If it wants to "exclude," then it doesn't need to hook up to the internet.

There are some other factual problems with the paper, such as suggesting that the telcos developed DSL in response to the success of cable modem services. That's not quite accurate. While DSL did lag cable slightly in implementation, cable was not widely deployed when DSL came on the market. The two were more or less developed in parallel.

I have no doubt that this argument will likely come into play in the upcoming fight over the FCC's attempt to reclassify broadband access, but it seems like an excessively weak claim that I hope no court would seriously consider. There are much more serious issues to focus on, including whether or not the sort of change is actually within the FCC's mandate.

Filed Under: eminent domain, fifth amendment, net neutrality, takings clause