P2P connections and takings
What's the intersection between takings jurisprudence and the current fights over regulation of online access? The answer may be “none,” but the issue is worth exploring.
A little background. The Fifth Amendment allows property to be taken for “public use” as long as “just compensation” is paid to the owner. Regulations (like zoning rules) aren't usually viewed as “takings” unless they meet some or all of the following requirements:
1. they have an unduly harsh impact on an owner
2. they are not substantially related to a legitimate public purpose
3. they interfere with reasonable investment-backed expectations
4. they amount to a permanent physical occupation, or
5. they deprive the owner of any reasonable economic use of his/her property.
If we said that all regulations were takings even if all they did was diminish the value of private property, our government would be stuck with paying everyone compensation for everything. So it's quite difficult to claim successfully that any particular regulation amounts to a taking.
Let's say that an ISP went into business assuming that their connections to the internet were not subject to FCC regulation. Then the FCC adopts a rule saying, for example, that no P2P connections may be permitted by any ISP. Or that no ISP may block any ports for business reasons. Or that all ISPs have to allow third party CALEA service providers access to their networks.
Is there any possibility of a legitimate takings claim based on any of these regulations? It's not clear that any one internet user or ISP has a property interest in its online connection from which they could exclude everyone else. But if you could show a cognizable property right that was constrained by these new regulations, would any of these rules amount to a compensable taking?
How about the blocking of ports? If an ISP wanted to deny access to particular online services (for its own legitimate business reasons), could that ISP claim that rules prohibiting it from doing so amounted to a wholesale interference with its investment-backed expectations? FCC can't say that allowing the ISP to act without constraint creates a public nuisance — something noxious and harmful. FCC might say that constraining the ISP from proceeding to block any ports will confer benefits on the public at large — but the ISP could respond that it was trying to protect its investment, and its actions were both legal and essential. (This argument of the ISP's likely would not be persuasive under current caselaw.)
Is there a claim that some ISP-related rules might amount to “exactions” that prohibit development unless an owner meets certain conditions? Exactions are demands made by cities — property owners have to comply in order to obtain a government permit to build on their land.
Now, ISPs don't (yet) need licenses to do business. But if the FCC takes the position that ISPs do need to be licensed in some way, rules the Commission adopts may amount to takings if they're substantially unrelated to the original reason for the permitting regime. So, for example, rules barring P2P services, or requiring different flavors of filtering, or furthering other “social policy” goals that aren't related to the reasons for ISP permits might amount to takings.
Takings claims seem quite unlikely at this point, I agree. But if the Commission goes beyond requiring a framework for competition, and indulges in detailed rulemakings about the provision of online access, some providers (and even some end-users) may begin to think that their property is being unfairly taken away.
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I found this informative
But don't you thing Hohfeld's “rights” jurisprudence may advance some of the points you make. I think the idea of correlatives is a useful springboard, don't you?
Sorry - *thing*, should be *think*