Human Property

Is access to the internet a civil right?  Are we entitled to the internet merely on account of citizenship?

In the United States this might be akin to asking whether cable TV is a civil right.  It just seems like an odd question to ask.

But other countries have taken this question seriously, and in many instances have concluded that access to the internet is a basic right.

This past October, Finland became the first country to declare high speed internet access a legal right.  The Finnish law requires that by 2015, every Finn must have internet access equivalent to 100 mb per second.

In June, a top French court declared access to the internet a basic human right guaranteed by the Declaration of Human Rights.  As such, the French court held that it was impermissible for France to deny internet access to individuals who were merely accused (but not convicted) of online piracy.

Estonia, a small Baltic country that borders Russia, passed legislation close to 10 years ago declaring internet access as a fundamental human right.

Will the United States follow suit with these other countries?  Congress seems unlikely to pass any type of law law guaranteeing internet access; there just didn’t seem to be any pressure or reason to do so.  As in France, the issue would probably come up before a court.  Here are a few hypotheticals that might lead a court to consider this question:

• Illinois is currently pondering a law that would ban registered sex offenders from accessing “social-networking Web sites“.  Would such a ban be constitutional?  Can a state prohibit people from accessing information and websites online?  Would this be an illegal restraint on the First Amendment’s guarantees of freedom of expression, or freedom of association?  The First Amendment guarantees people the right to say what they want in public forums subject only to time, place and manner restrictions.  Is the internet a public forum?  Or is it akin to a private mall which can kick you out at any time?  Answering this question may require a technical analysis as to who “controls” the internet — is it a private or government function?

• In addition to First Amendment issues, are there potential legal issues on account of the Equal Protection Clause?  The Equal Protection Clause of the 14th Amendment (passed after the Civil War) provides that all Americans are entitled to equal protection of the law:  no single group can be unfairly singled out for exclusion from constitutional rights.  Would the Illinois law present a case of an unfair restriction of a group of people without any rational basis?  It may seem unlikely that the Supreme Court would protect sex offenders from exclusion, but just a few years ago the Supreme Court held that a Colorado law which deprived gay people of legal rights was grossly unconstitutional as it unfairly targeted a group of people from protection of the law (Romer v. Evans, 517 U.S. 620 (1996)).

• Let’s assume that the Illinois law passed constitutional muster.  Could Illinois take the next step and ban all internet access for registered sex offenders?  The same First Amendment and Equal Protection Clause issues would appear to present themselves once again, but with greater force.  Let’s further assume that a court would OK restrictions on sex offenders to access the internet — can a state then restrict internet access for other groups?  Could a state pass a law barring convicted terrorists from accessing the internet?  How about alleged terrorists?  Many states already restrict convicted felons from voting and possessing hand guns — deeply fundamental rights in America.  Even if internet access were a fundamental right, it would seem internet restrictions caused by convictions might pass constitutional muster.  Is this right?

• Here’s another hypothetical that may be a reality before long.  Suppose the RIAA is able to successfully lobby Congress to pass a “three-strikes” bill that requires internet providers to restrict internet access to individuals who have been caught pirating materials at least three times.  Would it be constitutional to restrict internet access across the board to convicted online pirates?  This was the issue before the French court in June, and it found that that the law as written was too broad because it deprived people of judicial review.  If a jury finds you guilty three times of online piracy, can you be banned from accessing the internet for good?