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View Full Version : Net Neutrality Violates 5th Amendment




Matt Collins
08-02-2010, 12:55 AM
A forthcoming paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577082) 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 Supreme Court precedent (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=458&page=419), 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 (http://supreme.justia.com/us/483/825/case.html) 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.”


SOURCE:
http://www.openmarket.org/2010/07/30/give-take-fifth-amendment-complicates-net-neutrality/

Sentient Void
08-02-2010, 05:45 AM
Interesting. Thanks for sharing! Def gonna look into this more.

bobbyw24
08-02-2010, 05:46 AM
working for freedom and not Big Govt

Paleo
08-02-2010, 06:40 AM
good luck with that argument. If Scotus can find that forcing people out of homes for a 3rd party resort isnt an unlawful taking, then requiring heavily regulated licensed (which they submit to in exchange for their government granted bandwidth oligopolies) to sell to their customers without regard to content is a slam dunk.

specsaregood
08-02-2010, 06:46 AM
good luck with that argument. If Scotus can find that forcing people out of homes for a 3rd party resort isnt an unlawful taking, then requiring heavily regulated licensed (which they submit to in exchange for their government granted bandwidth oligopolies) to sell to their customers without regard to content is a slam dunk.

Yeah, I was just thinking that if anything this argument justifies giving the govt authority to regulate/control the internet using the imminent domain argument.

Matt Collins
08-02-2010, 01:32 PM
Look at me, look at me, I made the front page of Slashdot again!
:D:D:D:D:D:D:D:D

http://yro.slashdot.org/story/10/08/02/1422250/Does-Net-Neutrality-Violate-the-Fifth-Amendment (http://yro.slashdot.org/story/10/08/02/1422250/Does-Net-Neutrality-Violate-the-Fifth-Amendment)

Matt Collins
08-02-2010, 08:21 PM
YouTube - The Open Internet and Lessons from the Ma Bell Era (http://www.youtube.com/watch?v=ZS_udd5K91o&feature=player_embedded)

micahnelson
08-02-2010, 08:38 PM
Well, the internet is a public good. It was built by the military and government research labs intially- but has since been the effort of millions of engineers doing a little bit at a time. The internet, itself, should really be considered a physical representation of the public domain. Knowledge itself.

Access to the public domain before the internet came in many forms, buying books, attending speeches, listening to music, telling and retelling stories.

Internet companies do not own the internet, they provide access to it. The government has no ground to regulate prices, pricing policies, and things of that nature. However, when a company wants to hold some information over others- they are putting up unnecessary barriers against the flow of certain forms of information.

If they want to indiscriminately throttle all data to a certain cap- that is fine. I am just shocked at how many people on here are OK with your ISP telling you that you have to pay more to access RonPaulForums.COM but work an agreement for you to access Hannity's forums for free.

It has a chilling effect on the free exchange of ideas. I think that the people's first amendment rights trumps some elements of the ISP property rights. Do I trust the FCC? No, not really- but I trust them more than the ISP conglomerates.

michaelwise
08-02-2010, 09:18 PM
If there is a problem with one service provider censoring over others, one service provider can claim the most access to web sites or advertise no censorship of any sites. The market will decide which is best to subscribe to. I know which ISP I would buy from.

micahnelson
08-02-2010, 09:22 PM
In many areas there is only one broadband provider. I think eventually technology will solve the problem if it is allowed to mature.

I just want ISPs to make money by delivering web, not by securing exclusivity contracts with media providers. Commerce came to the web with everything already in place. Yes, business is done here- but first and foremost it is a common place for the free exchange of ideas.

Matt Collins
02-19-2011, 03:09 PM
Internet Cop (http://reason.com/archives/2011/02/08/internet-cop)

President Obama’s top man at the Federal Communications Commission tries to regulate the Net.

March 2011 Reason Magazine article here:
http://reason.com/archives/2011/02/08/internet-cop

Matt Collins
02-26-2015, 04:17 PM
...

Mr Tansill
02-26-2015, 05:25 PM
QFT. + rep.


Well, the internet is a public good. It was built by the military and government research labs intially- but has since been the effort of millions of engineers doing a little bit at a time. The internet, itself, should really be considered a physical representation of the public domain. Knowledge itself.

Access to the public domain before the internet came in many forms, buying books, attending speeches, listening to music, telling and retelling stories.

Internet companies do not own the internet, they provide access to it. The government has no ground to regulate prices, pricing policies, and things of that nature. However, when a company wants to hold some information over others- they are putting up unnecessary barriers against the flow of certain forms of information.

If they want to indiscriminately throttle all data to a certain cap- that is fine. I am just shocked at how many people on here are OK with your ISP telling you that you have to pay more to access RonPaulForums.COM but work an agreement for you to access Hannity's forums for free.

It has a chilling effect on the free exchange of ideas. I think that the people's first amendment rights trumps some elements of the ISP property rights. Do I trust the FCC? No, not really- but I trust them more than the ISP conglomerates.

In many areas there is only one broadband provider. I think eventually technology will solve the problem if it is allowed to mature.

I just want ISPs to make money by delivering web, not by securing exclusivity contracts with media providers. Commerce came to the web with everything already in place. Yes, business is done here- but first and foremost it is a common place for the free exchange of ideas.

The 5th amendment reads: "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."

I bolded the section I'm certain is the relevant part of professor Lyons' argument. The problem I see is that cables which deliver internet service already transit vast spaces of public land, as well as private for that matter, and the addition of new (and likely redundant) cable/fiber/whatever requires access to those same public and private lands. Hence, if I wanted to make my own internet company (ISP) and deliver service to a neighborhood (i.e. Mr. Tansill's Fast Internet Service), I would require that access to lay cable, install hardware, access public power infrastructure, and so on. The only way I could do this is through the mechanism of eminent domain!! All these companies already (by default) have used or benefited through the application of eminent domain whether they admit it or not - remember, the first internet came through the telephone line. Have a power easement on your property that runs neighborhood telephone line to your community? Have an internet cable that runs underneath your backyard? Try digging those up and just see if those companies don't utilize the "service of government" to re-establish their access to deliver their service and "override" your property rights. I dare you.

Eminent domain is a red-herring in this case because it's already done and in the past. If the ISPs cry foul over eminent domain, we may as well pedal all the way back to the 1950s and start over from scratch. I doubt they would desire that. They'll ache and moan, but only to the point where it serves their interests.

DamianTV
02-26-2015, 05:30 PM
Do we know anything about the actual contents of the 322 page bill, or has that remained secret? Id really like some hard facts instead of speculation.

Hint: The Patriot Act has NOTHING to do with Patriotism!

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