«Libertarians make the case: net neutrality is unconstitutional
Argue that forcing ISPs to carry all traffic infringes on freedom of speech.
by Cyrus Farivar - July 24 2012, 7:58pm CEST
The 2011 FCC Order established net neutrality as a matter of national policy. Since, companies like Verizon have been trying to fight it.
A group of well-known libertarian organizations has filed an amicus brief (PDF) to the US Court of Appeals for the District of Columbia Circuit in support of the plaintiff in the Verizon v. Federal Communications Commission case. Verizon filed its own brief earlier this month.
In the brief, TechFreedom, The Competitive Enterprise Institute, The Free State Foundation, and the Cato Institute argue that the last year’s FCC net neutrality order “Preserving the Open Internet” (PDF), which took effect in November 2011, violates the First and Fifth Amendments, and that the FCC lacks jurisdictional authority to implement such a rule.
Specifically, the groups say that compelling private companies to “speak,” by requiring them to carry all traffic across their networks, instead of allowing them to discriminate as they see fit, violates the principle of freedom of speech.
“When you allow the government to say that a private operator has to treat all speech equally and cannot refuse to carry some speech—our view is the First Amendment jurisprudence [stipulates] that the government can’t compel a speaker,” said Randolph May, in a call with Ars on Tuesday morning. May is president of the Free State Foundation; he is also an attorney, law professor, and former associate general counsel at the FCC.
Further, the groups argue, citing case law, the government must show immediate, real harm, rather than theoretical or possible harm.
“There isn’t a record to support suppression of speech here,” added Berin Szoka, also an attorney and president of TechFreedom, who spoke with Ars on Tuesday. “You could imagine a world where net neutrality violations have been frequent. The government would have a much stronger argument that they have a substantial or a compelling interest. That’s not the world that we live in.”
"Father of the Internet" calls this argument "flawed"
The FCC, of course, has previously argued that its actions are aimed at protecting consumers from being able to access whatever service they want over their home Internet connections.
Skeptical Vint Cerf is skeptical.
Net neutrality advocates, like Vint Cerf, the co-inventor of the TCP/IP protocol (and often dubbed a “father of the Internet”), e-mailed Ars to say that he agreed and that the premise of the amicus brief was “fundamentally flawed.”
“Editing the Internet in the way this brief suggests is a gross violation of the First Amendment rights of the customers, because there is not much competitive choice of Internet access providers—the FCC is to be credited for their effort to preserve the rights of citizens.”
Meanwhile, the groups also argue that the FCC Order is in violation of the Fifth Amendment, which prevents the government from, among other things, taking private property for public use, “without just compensation.” They also say that if the FCC order stands, “content providers will enjoy a nearly unqualified right to occupy the cables and wires that constitute broadband networks.”
This appears to be a fairly broad reading of the Fifth Amendment, given that private data transiting through a private cable isn’t quite the same thing as the government taking private property to use for the public good.
The final argument that the libertarian groups put forward is that the FCC lacks regulatory authority, because Congress had not specifically authorized the agency to claim “ancillary authority,” adding ominously at the end of its brief: “If the FCC can invent authority to regulate the Internet today, there is no limit to what it might do tomorrow.”»