Verizon claims that net neutrality violates their First and Fifth Amendment rights

Verizon has just changed their strategy in fighting against an open and free internet and it could have very large repercussions. Verizon long ago decided that net neutrality is a VERY BAD THING. They’ve spent huge amounts of money lobbying the FCC, Congress, and anyone else who will listen, and largely won in that the FCC is only imposing a form of "soft net neutrality" on wireless carriers. Despite that, Verizon has been fighting this watered-down set of regulations ever since. That court battle started out on whether or not Congress authorized the FCC to regulate the carriers in this way, but now Verizon is shifting the fight from defensive to offensive, and it could have implications far beyond just Verizon customers.

The reasons for the fight aren’t hard to understand – Verizon wants to be able to prioritize content that it profits from – either their own services or that of its partners (who pay Verizon for the privilege). After all, if Blockbuster streaming video is willing to “partner” with Verizon while Netflix isn’t, Verizon doesn’t want the popularity of those services decided by customers; it wants to make using Blockbuster a much better experience.

Verizon isn’t alone of course – in general all of the major carriers have come out against net neutrality. Net neutrality constantly threatens to turn their networks into lower-margin dumb pipes that compete against each other on pricing, rather than the back-bone of the higher-margin services companies that they are today. Verizon has been the loudest so far, but we suspect that’s because Verizon has been first to roll out a 4G LTE network. Increased internet bandwidth means that external web services are increasingly able to compete with Verizon’s own services; in other words, Verizon is seeing the writing on the wall a bit more clearly than the other networks that are still trying to roll out LTE networks.

To this end Verizon has been making the case that Congress never gave the FCC the authority to regulate the bandwidth that Verizon leases from the U.S. But Verizon seems to have become aware that even if they win in court, Congress could scuttle everything if they turn around and pass a law that provides the FCC with such a legal mandate. It’s not hard to imagine that the populist response to SOPA and PIPA earlier this year may have made the carriers sit up and take notice that the mass throngs of internet users can actually work in concert to affect the legislative process when they become aware that the internet they are used to may be compromised.

So to try and prevent that eventuality, Verizon just filed a brief in its legal challenge to the FCC, stating that while yes, they still believe that Congress hasn’t given the FCC a mandate to regulate wireless carriers, they also believe that such regulation violates Verizon’s First and Fifth Amendment rights, thus Congress can’t pass such a low even if they want to. Verizon argues that broadband network owners should be given editorial discretion about what goes over their networks, analogous to how newspapers owners have discretion over what gets printed in their papers. Detractors would point out that Verizon's network is more like the postal carrier delivering the paper than a news editor. And printing presses and ink don’t actually belong to the U.S. people the way the airwaves do.

Perhaps anticipating such responses, Verizon is also asserting their Fifth Amendment right against the unreasonable seizure of private property without compensation. In this case they claim that any sort of regulation is “an electronic invasion” of their network, akin to the government putting a permanent easement on their private property.

It's not clear if the courts will be sympathetic to either claim - especially on publicly-owned bandwidth. But if Verizon can convince the courts of either of these two arguments, they would be able to fend off any sort of net neutrality oversight, baring a constitutional amendment that either changes the legal status of corporations under the law, or provides explicit permission for the FCC to regulate carrier networks. Verizon winning on these claims could have even wider-ranging impact on the open web, since Verizon’s arguments would apply just as well to land-based broadband suppliers that are currently required to maintain net neutrality. And seeing as how much of the web is hosted on servers located in the U.S., the ripples from such a ruling could eventually spread out to impact nearly everyone who uses the web, whether they own a mobile phone or not.

It's hard to see how such a situation would be good for consumers, but that may not be the driving factor behind the final ruling. Regardless of which side you are on, this is an issue you will probably want to pay attention to, as it has the potential to impact just about everyone.


source: arstechnica via Droid-Life