The Right to the Internet
posted by Danielle Citron
According to a poll sponsored by the BBC World Service, four in five adults in more than 26 countries believe that Internet access is a fundamental right. The poll asked more than 27,000 adults about their attitudes towards the Internet and found that 87 percent of regular Internet users agree that access should be
a “fundamental right of all people.” More than 71 percent of non-Internet users felt that they should have the right to access the global network.
Crucial to our access to the Internet is our continued adherence to the end-to-end principle. As legal scholar and computer scientist Barbara van Schewick explained in her Opening Statement at the FCC’s Workshop on Innovation, Investment, and the Open Internet, the “network was designed to be as general as possible in order to support a wide variety of applications with different needs. So when a new application comes along, the network doesn’t have to be changed to allow the application to run. All the innovator has to do is write the program that runs on a computer attached to the Internet.” As van Schewick notes, the low cost of developing new applications has enabled the creation of eBay and Skype, even though many questioned those applications’ ability to succeed in the marketplace (who would buy goods through online auctions?) or their plausibility (network engineers didn’t initially think internet telephony was possible).
Now, however, sophisticated technology is available that “enables network providers to identify the applications and content on their network and control their execution.” According to van Schewick, the “original Internet was application-blind,” but “today’s Internet is not.” This matters to access and innovation. Although a programmer may have a great idea for a video platform that will revolutionize the way people watch television, cable providers could squash it. They could block the inventor’s application or slow it down. Why would they do that? As van Schewick explains, maybe the application competes with theirs, maybe they want a share of the inventor’s profits, maybe they don’t like the content, or maybe the application is slowed down to manage bandwidth. Whatever the reason, the network provider can ensure the failure of the inventor’s project, chasing away potential investors and other inventors. In the end, this risks the diversity of innovation and its concomitant societal benefits. If network providers “pick winners and losers on the Internet, if they decide how users can use the network, users may end up with applications that they would not have chosen, and may be forced to use the Internet in a way that does not create the value it could.”
In short, our failure to commit to network neutrality, to permit discrimination among applications, has a deep impact on what people now believe is their fundamental right. van Schewick closed her Open Statement with a telling story. She asked if the audience had tried to explained to their partners’ grandparents why they should get the Internet. She explained that she had and noted that she didn’t say: “Grandma, you have to get the Internet? It’s cool! It lets you send data packets back and forth.” “No, I said: ‘If you get the Internet, you can call us and see your grandchildren on the screen. And if we have new pictures, you’ll be able to see them immediately after we send them. And you can read about everything you can possibly imagine’ . . . “ Thus, by “protecting the factors that have fostered application innovation in the past, we can make sure that the Internet will be even more useful and valuable in the future.”
March 8, 2010 at 8:53 am
Posted in: Architecture, Culture, Current Events, Cyberlaw, Technology
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Responses (3)
Seth Finkelstein - March 8, 2010 at 4:42 pm
According to van Schewick, the “original Internet was application-blind,” but “today’s Internet is not.”
And this is a good thing! Because file-transfer and real-time video do not have the same network requirements.
The idea is that every application must follow the same profile as file transfer, as some sort of platonic ideal, is one of the stranger concepts to become conventional punditry.
Patrick S. O'Donnell - March 8, 2010 at 6:03 pm
With regard to a “right to the Internet” readers might find this post at Opinio Juris of interest, as this was indeed made a legal right in Finland: http://opiniojuris.org/2009/10/15/finland-makes-high-speed-internet-access-a-human-right/
Of course the provision of a right typically makes sense when we can identify the individuals and especially institutions who are the corresponding obligation-bearers, and as yet this is not possible in those many less-than-affluent nation-states found largely in the southern hemisphere. In other words, in such instances we lack the ability to institutionalize such a right (apart from the backing of the law and the legal system). Still, the rhetorical notion of such a right can have salutary political consequences in the long term insofar as it may come to guide political agitation and legislation.
By way of moral and political justification of such a right we might look, with Amartya Sen, to the concept of “relative poverty” (which serves to highlight the causal interdependence between poverty and inequality). After citing a passage from Adam Smith about “relative deprivation” (e.g., the day-laborer’s ‘need’ for a linen shirt in Smith’s time and place), Sen writes:
“Similarly, today, a person in New York may well suffer from poverty despite having a level of income that would make him immune from poverty in in Bangladesh or Ethiopia. This is not only because the capabilities that are taken to be minimally basic tend to change as a country becomes richer, but also because even for the same level of capability, the needed minimal income may itself rise, along with the incomes of others in the community. For example, in order to take part in the life of the community, or the children to be able to communicate with others in the same school, a bundle of commodities needed may include a telephone, a television, a car, and so on, in New York, in a way that would not apply in Addis or Dhaka (where an adult may be able to participate in social affairs and children can talk to each other without these implements).”
Hence the consumption patterns of others, for better and worse, matters, in which case the notion of a legal right to the Internet becomes more than plausible, indeed, increasingly, a “necessity” to the extent we can fill out and appreciate the notion of “relative deprivation.”
Danielle Citron - March 9, 2010 at 6:16 am
Superb insights–serious thanks for the link as well.
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