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One nation, online

The push to make broadband access a civil right

By Rebecca Tuhus-Dubrow
June 20, 2010

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If you’re one of the millions of Americans who use broadband Internet at home, you probably take for granted how deeply it’s woven into your life. It has transformed the way we pay our bills, seek romance, procrastinate, and keep abreast of politics and the lives of friends. The pre-Google era has become a distant, hazy memory.

If anything, many of us often half-wish we could escape the Internet’s clutches. The constant connectivity can be a shackle as much as a convenience. Our habits have even triggered a serious debate about whether all that clicking and toggling is warping our brains.

But as the Internet grows more and more important to modern life, some are now asking a different kind of question: Should broadband access be a civil right?

It may seem strange to put the technology that brought us Facebook in the august category where we place voting, or trial by jury. But increasingly, activists, analysts, and government officials are arguing that Internet access has become so essential to participation in society — to finding jobs and housing, to civic engagement, even to health — that it should be seen as a right, a basic prerogative of all citizens. And in cases where people don’t have access, whether because they can’t afford it or the infrastructure is not in place, the government should have the power — and perhaps the duty — to fix that.

The idea is already gaining traction both overseas and in the United States. In 2009, Finland passed a law requiring telecom companies, as of next month, to make broadband available to all citizens, even in remote areas. UN conferences have featured discussion of an international “Internet Bill of Rights” that would include the right to affordable access; a Pew survey of attendees at the 2007 UN Internet Governance Forum in Rio found that a majority of the respondents supported the idea of such a bill. And the notion is not confined to the progressive spheres of Europe and the UN: In Washington, at least two of the five commissioners at the Federal Communications Commission, Michael Copps and Mignon Clyburn, have said that broadband needs to be seen as a civil right.

As Internet use becomes ever more widespread, advocates say, it becomes an indispensable venue for activities like speech and political participation. More and more government functions are gravitating online; a vast and growing segment of social and cultural life now unfolds on the Web. The Internet, these advocates argue, has not only created a new world, its prevalence has also made it a prerequisite for full membership in the old one.

“Increasingly you can’t find a job without it. You can’t complete your education, or compete with your peers without it. You can’t take advantage of the tools of modern medicine without it,” Copps said recently in an interview. “I would hope as we go along...that it does become enshrined as a civil right.”

But characterizing Internet access as a civil right raises a number of vexing questions. Who would pay to bring broadband into households without it? By creating a right based on technology, are we making it harder for citizens to make their own, equally valid decisions to opt out of using it? And some analysts, while supporting the goal of universal service, simply don’t believe that a digital network should be elevated to the status of a right.

Even these skeptics, however, generally agree that broadband access is already deeply entwined with existing civil rights. Whether the government must ensure access to the means of taking part, or merely refrain from blocking it, is another question — and one that gets to the heart of what a civil right in America is.

Although supporters don’t see broadband as the kind of fundamental right enshrined in the Constitution — the basic human freedoms that protect individuals from government control of their lives — society acknowledges other kinds of rights as well, such as the right not to be excluded from the essential privileges of citizenship. This is the kind of right enforced by the Civil Rights Act of 1964, which guaranteed people equal treatment and equal access to schools and public facilities, regardless of race. The Americans with Disabilities Act of 1990 was similarly crafted to ensure disabled people could fully participate in American society.

Supporters also see a parallel in the 1934 Telecommunications Act, which aimed to make affordable access to telephone and radio services “available, so far as possible, to all the people of the United States.” Though it did not declare telephone access a right, the law was updated in 1996 to mandate that providers contribute to a “Universal Service Fund” which helps defray the bills of low-income residents and subsidizes service in low-density areas where prices would be quite high if left to the free market. This charge is often passed on to consumers in the form of an extra fee on phone bills.

Now, the same kind of attention is turning to broadband, widely seen as the most important new infrastructure of the 21st-century. (The emphasis is on broadband, rather than dial-up Internet access, because so much of the online world increasingly requires a higher-speed connection to download data and upload forms.)

“Pick an area of life and it’s affected,” says Mark Pruner, president of the Native American Broadband Association, an advocacy group that aims to bring broadband to reservations.

Pruner and other advocates can tick off a long list of basic civic functions for which the Internet has become vital. A large percentage of jobs advertise exclusively online and require that applications be submitted electronically. Commerce increasingly takes place online. With every election, Internet access grows more important to political engagement. And the Internet makes it easy to find the text of bills, learn how your representatives vote, and read about the White House’s plans and positions.

Even health is affected to a surprising degree. Medical institutions have begun to use the Internet to manage health information and let patients and doctors communicate more closely — an improvement in health care unavailable to people without ready access to the Web. “Telemedicine” — doctors’ appointments via the Internet — is expected to be the next wave in health care innovation.

Of course, most of these opportunities remain available through other means — by mail, by phone, in person. The Internet is an immensely valuable vehicle for free speech, but you can still take a bullhorn and air your grievances on the street corner. However, the more central the Internet’s advantages become to mainstream society, the more acute the disadvantage of lacking them. As Adam Smith wrote in “The Wealth of Nations,” necessity is always relative: Although a linen shirt was not technically a “necessary,” it had become one in the context of his society, because a worker would be ashamed to appear in public without one.

A substantial fraction of Americans now lack access to this modern necessity. In October 2009, a Department of Commerce survey found that a little over one-third of households did not use a broadband service. Sometimes this is by choice, but often it’s because of cost. In one survey, people told the FCC they paid an average of almost $41 per month for broadband, but that can vary widely; as a rule, broadband is more expensive in rural areas, some of which don’t have the relevant infrastructure at all. Usage figures correlate strongly with income, the Department of Commerce found: Households with family incomes above $50,000 overwhelmingly have broadband, but it’s far less common for lower-income people. The numbers also differ by race. Only about 45 percent of African-Americans, and an even lower percentage of Hispanics, use broadband at home.

Given how important the online world is to so many aspects of 21st-century life, when many observers look at Americans without broadband, they see a group of people who are slowly being excluded from society. Without it, says Benjamin Lennett, a policy analyst at the Wireless Futures program at the New American Foundation, “You’re simply not going to be able to have equal standing in society. You’re simply going to be left out.”

But there is a case against enshrining broadband access as a civil right. Civil rights and liberties, especially in America, are most often characterized as “negative rights” — that is, freedom from, rather than entitlement to. You are free to be left alone to worship as you please and to say what you like. Voting is a notable exception. But ideologically speaking, the American conception of rights, unlike that in the social democracies of Europe, has always been more sympathetic to negative rights than positive ones.

On a practical level, one obvious problem is that creating any new right of access requires money — either taxpayer money, or, in this case, extra charges levied on current telecommunications customers. Health care offers one analogy. Americans do not, as citizens of some countries do, have a legally enshrined right to health care — in part because the costs of such a right in our health care system could be astronomical. That said, the costs of universal broadband would be far more limited and predictable than those of health care. And the Americans with Disabilities Act is an example of a successful civil rights law that costs money to enforce, but has become broadly accepted.

More philosophically, some people argue that the category of civil rights is almost sacrosanct, defined by basic notions of human liberty and need, and broadband access simply does not rise to that level. Considering that Americans aren’t legally entitled to a house or a computer, does it make sense to mandate broadband access at home?

“To declare it as a national goal is a better way to do it than to make it a civil right,” says Pruner.

The government has already started trying to remedy the inequality in broadband access. In March, the FCC released a National Broadband Plan, requested by Congress in 2009, to outline ways to ensure universal service. Among its recommendations is to shift up to $15.5 billion over the next 10 years from the Universal Service Fund to support broadband. It also recommends another fund to promote broadband on tribal lands, where it is estimated that fewer than 10 percent of residents currently have the service. There is also an effort underway at the FCC to reclassify broadband as a “common carrier” regulated service rather than an information service. This change would grant the FCC much more authority over broadband providers, partly with the goal of expanding access. Telecom interests, and many members of Congress, strongly oppose the idea.

The New America Foundation, a nonpartisan think tank, has proposed that the government itself should be the provider of last resort in underserved rural areas, much as the Tennessee Valley Authority brought electricity to a wide swath of the country in the 1930s.

If such plans are enacted, the question of “rights” may be partly a matter of semantics — the practical goal of advocates is universal access, however that is achieved. “That is the only way to ensure a level playing field,” says Malkia Cyril, executive director of the Center for Media Justice.

But the debate itself, as it plays out, is highlighting something important about the Internet: More than electricity, more than the telephone — probably in an unprecedented way — the online world enables citizens to exercise their other rights, the ones enshrined in the Constitution. There is, increasingly, a virtual America layered on top of the real one, and “citizenship” means having a space in both.

Rebecca Tuhus-Dubrow is a contributing writer for Ideas. She can be reached at rebecca.tuhusdubrow@gmail.com.