Digital as Fundamental: Evaluating the Right to Internet Access in the Midst of a Global Pandemic

*Yitzchak Besser

The COVID-19 coronavirus pandemic has forced tens of millions of Americans into their homes, as states across the country have ordered lockdowns and isolation protocols.  Minyvonne Burke & Isobel van Hagen, 75 Million Americans Under Virtual Lockdown After Italy Suffers Huge Rise in Deaths, NBC (Mar. 21, 2020, 9:30 AM), https://www.nbcnews.com/news/world/75-million-americans-under-virtual-lockdown-after-italy-suffers-huge-n1165591.  These stay-at-home orders have dramatically altered how Americans view and use the Internet.  As options in the physical world have become restricted, people have turned to the digital world for alternatives.  Gregory Porumbescu, The Digital Divide Leaves Millions at a Disadvantage During the Coronavirus Pandemic, Conversation (Mar. 18, 2020, 8:07 AM), https://theconversation.com/the-digital-divide-leaves-millions-at-a-disadvantage-during-the-coronavirus-pandemic-133608.

People are looking at government websites for data about the disease, as well as instructions for how they should go about their daily lives in these unprecedented times.  Id.  Online media outlets are providing medical advice and information about symptoms of the coronavirus.  Id.  People have begun ordering groceries online to shorten the amount of time that they have to be around other people.  Id.  Businesses are asking their employees to work from home or laying off their entire staff.  Id.  Universities have started offering courses online rather than in person.  Id.  Schools have cancelled class and sent students home, leaving parents to look to the Internet to educate and entertain their children.  Kim Hart, Parents’ Daunting New Coronavirus Reality, Axios (Mar. 16, 2020), https://www.axios.com/coronavirus-parents-schools-work-from-home-nightmare-933ca8cb-f28f-41e4-9131-5f43fb5a6e6c.html.

Pundits have predicted that this increased reliance on the Internet will continue even after the COVID-19 pandemic has passed.  Coronavirus Will Change the World Permanently. Here’s How., Politico (Mar. 19, 2020, 7:30 PM), https://www.politico.com/news/magazine/2020/03/19/coronavirus-effect-economy-life-society-analysis-covid-135579.  This elevated Internet usage has sparked a broader conversation about how to provide web access to everyone.  See Porumbescu, supra.

Over 24 million Americans have no access to broadband Internet, while approximately 163 million Americans—nearly half the country—lack reliable broadband Internet connections.  Id.  These circumstances create a digital divide between those with access and those without access, or alternatively those who end up paying more for less reliable service and those who live in areas with better service.  Id.  As a professor at Rutgers University put it, “finding ways to bridge the digital divide is quickly becoming a matter of life and death.”  Id.

To address this issue, the government should establish a right to Internet access.  In November 2019, a British professor argued that unmonitored Internet access is a moral human right that should be free for those unable to afford it.  Internet Access Must Be Considered as Basic Human Right, Researcher Says, sci news (Nov. 21, 2019), http://www.sci-news.com/othersciences/ethics/internet-access-basic-human-right-07827.html.  Internet access, he argued, should be considered a universal entitlement because it is required to live “minimally decent lives.”  Id.  The magnitude of this necessity can certainly be felt as the world continues to cope with the coronavirus.  See Burke, supra.

Prominent American politicians have also argued that Internet access should be a universal right.  High-Speed Internet for All, Bernie 2020 (last visited Mar. 25, 2020), https://berniesanders.com/issues/high-speed-internet-all/.  Senator Bernie Sanders, formerly a frontrunner in the race to become the 2020 Democratic presidential candidate, promised he would bring affordable, high-speed Internet to every American household, if elected.  Id.  In his view, “[h]igh-speed internet service must be treated as the new electricity—a public utility that everyone deserves as a basic human right.”  Id.

Democratic Presidential nominee and former Vice President Joe Biden has also said that he wants to bring the Internet to the masses, as have former candidates Senator Elizabeth Warren and Senator Amy Klobuchar.  Internet is a Modern Necessity, but some Americans don’t even have Broadband, Wash. Post (Aug. 11, 2019, 5:31 PM), https://www.washingtonpost.com/opinions/all-americans-should-be-able-to-use-the-internet-how-do-we-get-there/2019/08/11/7d98a4d2-bad6-11e9-b3b4-2bb69e8c4e39_story.html.

The United States may be behind the curve in creating a right to Internet access. See Pavel Marceux, Has Internet Access Become a Basic Human Right?, Euromonitor Int’l (Aug. 12, 2017), https://blog.euromonitor.com/internet-access-basic-human-right/.  Finland, Estonia, Spain, Greece and Costa Rica have already recognized Internet access as a fundamental right.  Id.  In 2009, France’s most senior lawmakers ruled that the “[I]nternet is a fundamental human right that cannot be taken away by anything other than a court of law.”  Ian Sparks, Internet Access is a Fundamental Human Right, Rules French Court, Daily Mail (June 11, 2009, 10:53 PM), https://www.dailymail.co.uk/news/article-1192359/Internet-access-fundamental-human-right-rules-French-court.html.

Canada’s telecommunications agency declared in 2016 that it would provide high-speed Internet access to all of its citizens, declaring it a basic service that is “necessary to the quality of life” of all Canadians.  Lauren McCauley, In Historic Decision, Canada Declares Internet Access a Fundamental Right for All, Common Dreams (Dec. 22, 2016), https://www.commondreams.org/news/2016/12/22/historic-decision-canada-declares-internet-access-fundamental-right-all.  Mexico amended its constitution to include the right to Internet access in 2013, though the country’s telecommunications infrastructure has failed to provide complete coverage.  Mexicans Have a Right to Internet Access, El Universal (July 30, 2019, 9:16 AM), https://www.eluniversal.com.mx/english/mexicans-have-right-internet-access.  Mexican President Andres Manual Lopez Obrador has recently championed a governmental program to guarantee Internet access to everyone in his country.  Sierra Juarez, Mexican President Guarantees Internet Access for all, Anadolu Agency (Jan. 9, 2020), https://www.aa.com.tr/en/americas/mexican-president-guarantees-internet-access-for-all/1697193.

Clearly, the right to Internet access has become a welcome development in many corners of the globe.  See Marceaux, supra.  Key politicians in Washington have also warmed to the idea.  See Wash. Post, supra.  Given the Internet’s growing importance in society and the stark digital divide across the country, the U.S. may soon see even more voices calling for this new right in an even louder fashion.

*Yitzchak Besser is a 2020 graduate of the University of Baltimore School of Law, where he served as a senior staff editor for the University of Baltimore Law Review. He will be working as a judicial law clerk for Senior U.S. District Judge Glen Davidson in 2020-2021. He served as a judicial intern in the chambers of U.S. District Judge Stephanie A. Gallagher, as a legal intern at Pillsbury Winthrop Shaw Pittman LLP, and as a student attorney in the University of Baltimore Saul Ewing Civil Advocacy Clinic. He is a member of the Royal Graham Shannonhouse III Honor Society and a member of Omicron Delta Kappa – The National Leadership Honor Society. He was also the vice president of the University of Baltimore Intellectual Property Law Society. Prior to law school, Yitzchak served as an editor at an international newspaper and as the content director at an email marketing firm.

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