Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation

“Net neutrality” refers to the principle that broadband providers should not limit the content and applications available over the Internet. Long a rallying cry of techies and academics, it has become one of the central pillars of the Obama Administration’s telecommunications policy. The Federal Communications Commission’s efforts to regulate the “onramp to the Internet” have attracted significant attention from the telecommunications industry and the academic community, which have debated whether the proposed restrictions violate broadband providers’ First Amendment rights. But there is an additional constitutional implication of net neutrality that has not yet been sufficiently addressed in the scholarly literature: the Takings Clause. This article argues that under the Supreme Court’s Takings Clause jurisprudence, the Commission’s proposed net neutrality rules effect a permanent physical occupation of private broadband networks and therefore take broadband providers’ property without just compensation. In essence, net neutrality would grant Internet content providers a permanent virtual easement across privately-owned broadband networks to deliver content to end-users. It thus would deprive broadband providers of the right to exclude others from their networks—a right that the Court’s takings jurisprudence has repeatedly dubbed “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” At the very least, the Takings Clause issue raises a serious constitutional question regarding the Commission’s authority to adopt net neutrality regulations without clear authority from Congress to do so. The Commission should therefore seek explicit Congressional approval before promulgating net neutrality rules, rather than continuing to freelance at the periphery of its regulatory authority