Susan Crawford has been thinking about the "self-owned Internet."
"In an 1824 case, someone claimed that he privately owned oyster fisheries under some navigable waters in New Jersey, and that the ownership of these things had come down to him through a royal grant made before the Revolution.
Chief Justice Taney (who hung on for an awfully long time and later decided the Dred Scott case) disagreed. Listen to this: "When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government."
Taney was saying that the people were sovereign, and that they had given this common ownership of the oyster beds over to their government to run for them, as a kind of public trust.
Now -- the internet wasn't created by nature; it's an agreement between machines made possible by the designers of that agreement (or protocol). But it is a great gift, and it is very important to being a citizen, and for these reasons it is owned by all for common use. It's a commons, like the Boston Common. And no sovereign ever showed up to which the people who "own" the internet (that is, everyone) surrendered their ownership.
But sovereigns (governments) still have a duty, and it's a very old one. It's in Roman law, and Greek law, and early English law -- it's the duty to protect access to the seashore, which is the place where people can access the sea. A very important common resource...
So -- it's fine to build special services and make them available online. But broadband access companies that cover the waterfront (literally -- are interfering with our navigation online) should be confronted with the power of the state to protect entry into this self-owned commons, the internet. And the state may not abdicate its duty to take on this battle."