Neutral territories

>> Tuesday, August 03, 2010

Via Slashdot, we have an utterly appalling argument repeated at OpenMarket.org to the effect that proposed net neutrality regulations are a violation of utility corporations' Fifth Amendment rights; specifically, the argument goes, requiring telecommunications companies to treat all data passing over their cables and radio frequency allotments equally instead of selling privileged access would constitute a taking for which the telecoms must be compensated. (Got that?)

This claim is pretty rapidly demolished in the first few comments at OpenMarket.org; specifically and foremost, the telecoms only have those cables across your property and mine and those allocations of our shared, public radio spectrum because they've been given easements as to the former and licenses for usage of the latter. (It might also be added, as I've said before, that corporations only exist by public grant in the first place--that is to say, entities are granted the privilege of limiting their collective, corporate liability by being allowed to register as corporations in the first place, and an entity that is not properly registered as a corporation in a jurisdiction may not be able to legally capable of owning property in the first place, as a f'r'instance prerequisite for having any Fifth Amendment rights to start with.) To make an argument that the particles running down a wire have physical presence and therefore cannot be regulated by government without implicating property rights is, aside from a somewhat tricky treatment of physics, to conveniently set aside the fact that the wire is only there in the first place because government took property from somebody else who was living on top of the wire.

This is, if you can't figure it out, how some extreme libertarians are so smart they're stupid. The Fifth Amendment argument is modestly clever, to be sure, it just doesn't bother itself with following it's own logical consequences. If we agree that the particles streaming down the wire are sufficiently tangible that you can't dictate neutral usage of those particles without it being a taking, it's hard to imagine why I can't charge AT&T (or whomever) a toll for every quanta crossing my property en route to wherever. Or simply bar them from trespassing in the first place. A man's entitled to the use and enjoyment of his property, right?

What I find more distressing, though, is that we're even having the conversation in the first place. Net neutrality is something that strikes me as self-evidently required for the Internet to function at all. If a service provider can, say, engage Google and Microsoft in a bidding war over whether users will be able to stream data from Google's search engine or Microsoft's stupidly-named "Bing," what you have is no longer the Internet as we all know it and love it. Neutrality is embedded in the whole premise of the thing. But there's been a long effort on the part of the telecoms, as part of their search for new revenue streams, to try to sell the public on the curious notion that it's bad to treat all data bouncing between computers as the same no matter what it is or where it came from. It strikes me that the real point in pushing the Fifth Amendment argument has less to do with the likelihood of it succeeding in a Federal Court than it does with seeding the public with the idea that neutrality is somehow theft.

And this notion is important because the actual regulations that will preserve net neutrality are dictated by Congress and enforced by regulatory entities like the FCC that act on behalf of elected officials in the Executive Branch. Convince consuming voters to tolerate legislators and regulators who support corporations over consumers--or more nefarious yet, convince consumers that "net neutrality is bad and corporate interests are just looking out for their customers," and you've not only set the stage for destroying the Internet as we know it (yes, I know, sounds ridiculous and inflammatory, but that really is what we're talking about), but you've also yet again furthered this bizarre situation we're in today in which corporations have unwarranted and unprecedented financial, political and social power; you know, the kind of mindset that had certain people saying it was wrong to criticize BP for fucking up and demand they fix things because... well, to be honest, I don't understand what's going on in those people's heads so I can't even tell you what their "because" was. They just sort of took it for granted that you and I would side with an artificial legal construct created to limit business liability and generate profits for investors over The People and the representatives we choose through a democratic process to represent the collective will of The People.

Business serves society. It isn't an end unto itself.




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