Taking the Internet by Law

Comcast is the largest internet provider and often the sole provider in many areas of the United States. Without competition, Comcast has postponed upgrading its internet infrastructure in these uncontested regions, leaving millions of Americans with DSL internet that is too slow for subscribers to engage meaningfully in an increasingly digital world. Along with slow internet speeds, the lack of competition has allowed Comcast to adopt predatory pricing practices, further marginalizing some of the most vulnerable communities. To address these issues, what if a city or state took ownership of Comcast’s physical infrastructure, such as cables and service equipment, and allowed other service providers to sell to their residents, fostering competition? The idea of government-run physical network infrastructure, with competitive services run atop it, is not unknown.

This problem could be solved through the Fifth Amendment’s takings clause, as demonstrated in Kelo v. City of New London, Conn. In this case, the City of New London created a development plan that was projected to generate more than 1,000 jobs, increase tax revenues, and revitalize an economically distressed city. The city acquired land along the waterfront and downtown corridors to accomplish this plan through mutual deals and eminent domain, which it would later sell off to private developers. To assess the validity of the City’s actions, the Court applied the Takings Clause of the Fifth Amendment, which provides that when the government takes property, the taking is valid only if it is for public use and just compensation is given. Specifically focusing on the ‘public use’ element, the Court held that the city’s taking of the land constituted public use because the development and economic plan would provide appreciable benefits to the community and had been comprehensively considered before its adoption.

This doctrine of eminent domain provides insights into resolving the dispute over Comcast's monopoly on the internet. For this paper, it will be assumed that the Internet is no less essential than water, electricity, or garbage collection. For the government to take control over Comsat, it must prove it is doing so for “public use.” In the growing online world, the internet is used for everything from working remotely to participating in the electoral process by researching candidates, watching debates, or attending school. Given that millions of Americans are either unable to have internet, slow internet, which makes it virtually unusable, or unaffordable internet, a state may want to provide its citizens with internet to facilitate these critical uses. On the other hand, Comcast might argue that accessing the Internet is not a public necessity, and that the city or state is merely transferring its property to a competitor. To address this objection, much like the City of New London did, the city or state will need to create a well-considered and comprehensive plan outlining the objectives of the taking and detailing how it will specifically benefit the community as a whole.

Given these arguments, a court would likely favor the state. In property law, such a case would violate all five pillars: the rights to possession, ownership, exclusion, alienation, and usufructuary. As Justice Thomas points out, eminent domain itself runs against the fundamental principles of property law, yet this does not necessarily mean the principle is against the public interest. As previously established, the Internet is an essential commodity to our society today, without which many of us could not do our work or complete our studies. Yet, many Americans are left without access or only one option, causing predatory pricing for a commodity many could not live without. The state seizing control of a vital aspect of many lives, even if it deprives a multibillion-dollar business of a property right, is in the public interest and within the power of a democratically elected government.

Mac Richards is a law student at American University Washington College of Law, the Senior Column Editor at the Human Rights Brief, and a Junior Staffer at the American University Business Law Review.

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