Give & Take: Fifth Amendment Complicates Net Neutrality

by Carolyn Homer on July 30, 2010 · 25 comments

in Legal, Regulation, Tech & Telecom

Opponents of net neutrality, including the Competitive Enterprise Institute, have pointed to numerous grounds upon which the detrimental scheme could be challenged. These include its deterrent effect on investment, its unsatisfactory grounding in FCC statutory authority, and that it violates the First Amendment.

Via the Free State Foundation’s outstanding Perspectives series, 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 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.”

This applies in the net neutrality context. Instead of allowing broadband providers to dictate terms of service and variable pricing models based on demand, the providers would be forced to allow content creators unlimited access to their networks. In essence, “content providers would receive the equivalent of a virtual easement to traverse broadband providers’ networks.” If it’s a compensable taking for the government to require cable lines to be installed, it’s also a taking for the government to require that those cable lines carry certain content.

And lest opponents start arguing “But it’s only electricity! That’s not what Court meant by physical.”, Prof. Lyons has a rebuttal:

As a factual matter, the transmission of content over broadband networks is not some metaphysical act. It takes place in a real physical space: the fiber-optic and copper wires, and associated electronics, that comprise the broadband network. Transmission of Internet content primarily involves the movement of electrons (which are physical particles) that occupy rivalrous limited space on telecommunications wires en route from the Internet to the end-user consumer. While the electrons are invisible to the naked eye and travel very quickly within a sheathed wire, the physical act of transmission is nothing more than a microscopic version of vehicles traveling along a highway—or pedestrians traversing an easement. In other words, the mandatory transmissions do physically occupy the service providers’ property.

Lyons goes on to describe how the FCC lacks the constitutional authority to authorize such a taking. A Title II reclassification could thus be void from Day 1. Only Congress can take this action, if action is taken at all. But if Congress acts, they should understand that the regulation will come with a multimillion dollar price tag in legal fees and compensation payouts from the Treasury. That’s not smart policy — jeopardizing taxpayer dollars for a scheme that was ill-conceived from the very beginning.

JR in WV August 2, 2010 at 6:13 am

This is absurd, logically, as the companies which would fall under the net neutrality regulations are utility companies which operate using the public airwaves. They have no inherent right to the public property they're using, no more than I would have the right to broadcast a megawatt signal in an allocated frequency without an FCC license.

In order for these companies to operate at all they need those licenses to operate wirelessly, they need access rights to cross other people's property with hard-wired equipment, they don't own the airwaves, so there can't be a taking of their property by requiring them to operate fairly. That's what net neutrality is, requiring companies to treat customers the same, after all.

weestrom August 2, 2010 at 6:21 am

No. They have already been compensated with all of the easements across public and private land and other subsidized infrastructure that allows their services to exist in the first place. Next question?

Matt August 2, 2010 at 6:26 am

JR is correct. Net Neutrality requires zero government presence, so all of this hoopla about 5th amendment and 4th amendment are wholly irrelevant.

Literally, net neutrality by gov't might mandate that an ISP cannot traffic shape.

That is not occupation of anything. Meanwhile, we already pay for unlimited access to our networks. It's called the internet, and we pay a monthly subscription for access to it.

Waaaaaay off, carolyn. Nice to show us that you have absolutely no idea what you're talking about.

Tubby August 2, 2010 at 6:30 am

Aww, come on. The Internet is not a bunch of wires, hardware, or even software. The Internet is a collection of agreements on how computers inter-operate. Those agreements, both the business ones and the technical ones, are likely within the purview of interstate commerce as it has been previously held, and are thus subject to regulation under current constitutional authority.

This is the weakest argument I can imagine. Is that a sign of desperation?

Chad August 2, 2010 at 6:54 am

If we are going to look at the 5th amendment that way then I am going to start claiming the right to block and/or control any power lines and radio waves that "freely traipse" across my private property. Such an incoherent argument holds no water and will only open the proverbial can of worms. What "private property" are we talking about? Is this guy saying that every piece of land that the broadband lines run through belongs to the ISPs? Most of it is public property, which they have been given access to because they are providing what is considered a public service, which they make an increasingly fat profit from last time I checked.

Jon August 2, 2010 at 7:00 am

The problem is what the FCC's plan for net neutrality is they wish to occupy Berlin… Whereas the consumer just wants the the ISP's to stay out of their traffic. The pro-net-neutrality folk have failed to read the actual FCC proposals, and the FCC has failed to produce a regulation that doesn't involve a hostile takeover. The pro-net-neutrality have blamed republicans for blocking the legislation, but I think until the pro-net-neutrality read the fine print on the FCC's proposed regulations, I'll have to agree with republicans.

Shredding Back August 2, 2010 at 8:09 am

The FCC has failed to publish a non-unpredictable future. The problem right now is we are being shut down systematically by oath breakers using (plausible deniability) the rules are not commissioned to be chiseled into stone anymore, instead uncertainty fills the void.

We have to throw these treasonous coup people out.

Shredding Back August 2, 2010 at 8:04 am

1ST Amendment is on the FRONT LINE

5th Amendment is simply being abused (Like other Amendments right now are they LAW or BS, I really can't tell anymore)to suck more money out by the oath breakers, murders, and thieves who truly need life in prison

Shredding Back August 2, 2010 at 8:20 am

it's a short trip from the 1st to the 5th, perhaps it would be wise to make sure nobody, no president, or Senate or Judicial, or Corporation can suddenly construct a "state secret" electrical connection with such destructive power in the first place without GETTING LIFE in prison yourself. This way it isn't abused in the first place. ;o)

roystgnr August 2, 2010 at 8:24 am

Abridged whining:

"We need to take some of your property and your governments' property so we can run our wires across it. Throw in some legislated local monopolies while you're at it. Wait, you want fair treatment of what goes over those wires? But they're our *property*!"

Tony P August 2, 2010 at 8:56 am

This is the height of ridiculous. So why doesn't government take the last mile because there are bucketloads of spare capacity on dark fiber pretty much everywhere.

paul August 2, 2010 at 9:16 am

I think Woolworth's had a much better argument for this with its lunch counters. And certainly Rand Paul agrees…

Stephan Wehner August 2, 2010 at 9:21 am

I'm not from the US.

My impression is that sometimes, like here, there is too much read into the constitutional amendments. After all, they were put down a long time ago.

It would be good to give those an update from time to time.

Same with the gun laws, for example.

It is a special kind of injustice to use old (and possibly outdated) rules.


Robert Berger August 2, 2010 at 11:14 am

Well, lets just take back the public rights of way and airwaves that the Monopolies got for free, below cost or from regulatory capture and then let them claim the 5th…

The real answer is horizontal divesture of the Cable and Telcos. Put the physical plant (which is mainly built on public rights of way) in an entity that supports the common good and becomes a fabric for a vibrant marketplace for lighting and providing services on top of the physical plant (just like roads).

JoeR2 August 3, 2010 at 4:52 am

Most of the comments here are confusing Net Neutrality with content neutrality. If I pay you for a certain amount of bandwidth, it shouldn't matter what I use it for–that's content neutrality. However, that does not give me the right to transfer arbitrarily large files across your network that *exceed* that bandwidth without compensation–that's what net "neutrality" advocates want to do.

The companies that install and maintain the fiber and infrastructure need to get paid for what they do. That's the difference between radio waves and fiber–nobody needs to "maintain" the air!

Most railroads are built on public rights-of-way also, but I don't hear anyone advocating freight neutrality. Same with electricity–the lines are on public property, but you have to pay for the amount you use.

Pete August 4, 2010 at 2:02 pm

1. I have unlimited internet access. Internet access is *generally* not sold in terms of file transmission anymore, but rather the speed at which you connect to the internet.

2. That being said, If I choose to watch online content such as Hulu, Netflix, etc 24/7 (meeting the criteria for your large file transfer argument. A standard movie is about ~2GB), it should not matter to my ISP or any network in the path.

What I mean by neutrality is that my traffic will not be shaped, modified, or otherwise molested between the server I request from or send to.

Tom Heller August 3, 2010 at 5:07 am

"Most railroads are built on public rights-of-way also, but I don’t hear anyone advocating freight neutrality."

There's no need for it — competition between modes ensures against anti-competitive behavior by RRs.

But -and this goes to the concept of net neutrality- RRs, like their competitor truckers, are deemed to be "common carriers" and must make their services available, accessible and affordable to all comers. As common carriers, NO discrimination between customers is permitted.

Viktor August 3, 2010 at 10:31 am

Prof. Lyons should stay with whatever he's teaching and leave the physics to the physicists. Here's a hint: Electrical current does not "travel" down the wire by means of individual electrons "traveling" down the wire. That's an abstraction for middle-schoolers, that has nothing to do with reality. Electrons do move through a metal, but it's by no means fast.

Stephan Wehner August 3, 2010 at 10:53 am

This article,

explains why Daniel Lyons' paper is mistaken


Charles August 3, 2010 at 8:20 pm

(this is a picture of columbia university in New York, but the article refers to boston college)

John August 4, 2010 at 7:03 am

I am a network engineer who manages services that prioritize and tier internet traffic for a global private network in exactly the same way that the ISPs want to prioritize traffic on the public Internet, and I think I can shed some light on things, in order.

1.) The chief issue NN addresses: the so-called 'tiered' internet. When an ISP gives higher priority to some traffic, they must take bandwidth away from others, and it will reduce both bandwidth and speed to the non-prioritized users. Those users will see service diminished. However, those paying for 'higher speed' will not necessarily see higher speed. This has to do with the nature of the internet – specifically the 'inter' part. Anywhere you go on the internet, you must cross competing providers. Those competing providers are unlikely to honor each others priority settings or traffic. The reason is that they will all have different and non-compatible prioritization agreements with customers. The so-called 'tiered' internet will only work if some entity dictates prioritization policy to all providers. Such specifications exist, but are implementation specific, meaning not required to be followed.

2.) Lyons rebuttal: If its true, as lyons suggests, that "the physical act of transmission is nothing more than a microscopic version of vehicles traveling along a highway" it should be noted that such space, according to modern physics, is practically immeasurable. Also, since physical mediums include fiber optic, the physical analogy rapidly becomes misleading at best. For all practical purposes, its fallacious. Bandwidth is a limitation, but not based necessarily on the number of electrons 'moving' through a wire. Trying to establish a physical analogy in order to apply a legal precedent in this will only result in a new precedent based on little more than imagination.

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