Fifth Ammendment Arguement Against Net Neutrality (Part 5 in a multi-part series)

Opponents of net neutrality have also argued that such regulation would constitute an unlawful “taking” of property. The 5th Amendment to the United States Constitution allows for the taking of private property by the government only with “just compensation” to the owner of the property in question.  Opponents to net neutrality argue that the regulation, by forcing network owners to treat all content equally, deprives them of rightful ownership of these assets and, therefore, violates this clause.  By taking away the ISPs ability to refuse access to their network (content blocking) or mandating the conditions under which access is permissible, net neutrality violates the 5^th amendment rights of the ISP.

The case law around this argument is open to some interpretation. In Kaiser Aetna vs United States, the court held that the right to exclude access to ones property is an essential element of property ownership. “one of the most essential sticks in the bundle of rights that are commonly characterized as property [is] the right to exclude others.”

However, other case law has been less clear when the matter concerns the FCC. As professor Rob Frieden note:

“While reviewing courts have questioned the nature, type and rates of the FCC mandated common carrier interconnection and facilities-leasing requirements, the judiciary has not deemed the requirements confiscatory: ‘There is no evidence that the decision to adopt TELRIC [i.e., compulsory pricing of local exchange service elements on the basis of quite low Total Element Long Run Incremental Cost] was arbitrary, opportunistic, or undertaken with a confiscatory purpose. Indeed, the indications in the record are very much to the contrary.’" *

The Fifth Amendment argument, while compelling to some strict constructionalist interpretation of the constitution, will probably have a difficult time advancing in the courts. I think ISPs are going to need to rely on something else if they hope to derail net neutrality legislation.

Good Talk,
Tom

* From footnote 57 of “ Internet 3.0: Identifying Problems and Solutions to the Network Neutrality Debate” Rob Frieden