Is Internet Access a Right?

As a teenager I would mow lawns. The implicit contract was relatively simple, but it illustrates the relationship between claims and duties. If I mowed Mrs. Nichols’s lawn, then I had a claim of $15, which she had a duty to pay.

Similarly, when it is claimed that Internet access is a right, then a duty to provide that service naturally follows. In this case, citizens are the claimants, and the state, or perhaps some other agent, becomes duty-bound to furnish Internet access to the citizens.  

Like many other phrases, Internet access is a polysemous term, encompassing a range of possible claims. So, the right to Internet access takes differing forms.

In the United Kingdom, for example, the right to Internet access was recently defined in the context of speed. Instead of placing regulations on Internet service providers or demanding that they abide by buildout requirements, the government made access to high speed Internet of 10 Mbps a right. Now there is a legal requirement for BT to provide high speed broadband to anyone requesting it in any region in the UK, subject to a cost ceiling. In the government’s announcement, it made the goals abundantly clear. The change was meant to “maximise the provision of fixed line connections in the hardest to reach areas.”

In the United States, where broadband begins at 25 Mbps, the right to high speed Internet suggests a different set of duties. Indeed, if the US were to define broadband at the 10 Mbps mark, then the right of Internet access would almost have been met since 96 percent of people in the United States already have this level of access.

Speed and deployment aren’t the only ways to define rightful Internet access. When the United Nations passed a nonbinding resolution making Internet access a human right, there was little mention of speed. Instead, the strongest opprobriums came in the form of Internet shutdowns and privacy violations. This version of a right to Internet access suggests a different set of duties, which the UN explained in their resolution language:

Condemns unequivocally all human rights violations and abuses, such as torture, extrajudicial killings, enforced disappearances and arbitrary detention, expulsion, intimidation and harassment, as well as gender based violence, committed against persons for exercising their human rights and fundamental freedoms on the Internet, and calls on all States to ensure accountability in this regard;

Condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law and calls on all States to refrain from and cease such measure.

Employing the language of Isaiah Berlin, Internet access can be understood as a negative right, which obliges a duty of inaction, or a positive right, which obliges a duty of action. That is, the right to Internet access can be understood as a positive right meaning that everyone should have access to certain speeds. Or, the right to Internet access can be understood as a negative right limiting the government from shutting down the Internet and using Internet access as a pretext for human rights violations.

Notice how Federal Communications Commissioner Michael O’Rielly defined the right to Internet access back in 2015:

It is even more ludicrous to compare Internet access to a basic human right. In fact, it is quite demeaning to do so in my opinion. Human rights are standards of behavior that are inherent in every human being. They are the core principles underpinning human interaction in society. These include liberty, due process or justice, and freedom of religious beliefs. I find little sympathy with efforts to try to equate Internet access with these higher, fundamental concepts.

What the Commissioner is doing here is known as lexical prioritizing. Lexical priority is a broad term to describe how rights are to be prioritized, like a dictionary. So, if right A is lexically prior to right B, then you will have to totally exhaust A before moving to B.

Even though he is not explicit, the emphasis by Commissioner O’Rielly on liberty, due process, and justice speaks to the negative right of Internet access, in that government should not be unduly interfering with Internet use. Indeed, the rest of his speech focuses on government hindrances. In this way, he places the negative right before the positive right of Internet access.

While O’Rielly was chided at the time for those remarks, U.S. law is centrally focused on negative rights and limitations on government action. As Judge Richard Posner explained, the Constitution serves as “a charter of negative rather than positive liberties.” That focus, however, does not require that negative Internet access rights be lexically prioritized—there needn’t be a complete satisfaction of the negative rights for us to then turn to positive rights and the issue of broadband buildout.

Rights talk, though, necessitates lexical priority. When the rhetoric of rights is involved, the matter at hand is set apart from other concerns, and is granted claims and duties. One still could retort, “why do we need to classify it as a basic human right in order to argue that the Internet, in this day and age, is a necessity that we want more and more people to have equal access to?”

Yet, rights talk is made within a political context. Philip Tetlock (summarized here by Steven Pinker) correctly characterized this act of prioritizing for what it is, a shrewd move meant to create unpalatable political tradeoffs:

Tetlock distinguishes three kinds of tradeoffs. Routine tradeoffs are those that fall within a single relational model, such as choosing to be with one friend rather than another, or to purchase one car rather than another. Taboo tradeoffs pit a sacred value in one model against a secular value in another, such as selling out a friend, a loved one, an organ, or oneself for barter or cash. Tragic tradeoffs pit sacred values against each other, as in deciding which of two needy transplant patients should receive an organ, or the ultimate tragic tradeoff, Sophie’s choice between the lives of her two children. The art of politics, Tetlock points out, is in large part the ability to reframe taboo tradeoffs as tragic tradeoffs (or, when one is in the opposition, to do the opposite). A politician who wants to reform Social Security has to reframe it from “breaking our faith with senior citizens” (his opponent’s framing) to “lifting the burden on hardworking wage-earners” or “no longer scrimping in the education of our children.” Keeping troops in Afghanistan is reframed from “putting the lives of our soldiers in danger” to “guaranteeing our nation’s commitment to freedom” or “winning the war on terror.”

Currently, when we discuss the issue of Internet access, it is best described as a routine tradeoff. By talk of rights, Internet access is raised to apotheosis. The effect has explicit political implications. By claiming that Internet access is a right, any future discussion of negative consequences will be understood as a taboo tradeoff. Once you make Internet access a right, mentioning the cost will be seen as simply crude.  

But it is a costly endeavor to build out Internet access to everyone. Last year the Federal Communications Commission (FCC) wrote a white paper on the topic and estimated that about $80 billion would be needed to get everyone onto a fixed broadband connection. Half of that would go to connecting the last 2 percent of homes in the United States. And even after this last group got connected, the government would need to provide continuing support.     

What rights talk accomplishes is the creation of a firm rhetorical footing for certain duties or entitlements. Yet you don’t need the right for the entitlement to be present, and for this reason in particular, I’m fairly skeptical of a positive right to Internet access.

For example, not many are concerned with a positive right to telephone access because various programs effectively create broad telephone access. This is done through the federal Universal Service Fund and other state-based versions of this program. For those not steeped in telecommunications policy, the phrase “universal service” has been the moniker under which telephone entitlements have been established, not a telephone access right. Indeed, the Telecommunications Act of 1996 has a section explicitly dedicated to universal service and defines it as the promotion of “quality services at just, reasonable, and affordable rates” and the expansion of “such services to all consumers, including those in low income, rural, insular, and high cost areas at rates that are reasonably comparable to those charged in urban areas.” In short, these are duties without rights.

Separately, I don’t think it is necessary to make Internet access a right in the negative sense because of the broader legal and political climate in the United States. Indeed, there is a case to be made that Internet access rights in the negative sense aren’t rights sui generis, but are merely emanations of other enshrined rights like the right to privacy, freedom of speech, freedom of association, the right of habeas corpus, private property rights, and the right to a speedy trial. In the U.S. it is difficult to shut down the Internet because governments are already constrained in what they can do. In other countries, this isn’t the reality. Both Ethiopia and Sierra Leone shut down the Internet recently, but both countries rank fairly low in international rankings on governmental constraint.

Claiming that Internet access is a right creates a rhetorical line in the sand. Yet, that categorization isn’t needed to make the case that people should have broad and equal access to the service.

Featured image is a partial map of the Internet