This paper is part of a larger work: my journal Note. It's the Note's introduction, and I'd appreciate trenchant criticism, as long as it furthers my fundamental goal of getting this Note finished. Apparently we can't footnote using this application, so please forgive me if I don't use the link function to provide citational support for some assertions. This Intro is available in Word format for anyone who would like to see the footnotes.

The Internet as a Constitutional State Right

Introduction

Two weeks before the November 3rd, 2008 MLA byelection for New Maryland-Sunbury West—an electoral district for the Legislative Assembly of New Brunswick—Progressive Conservative candidate Jack Carr made what was widely considered a politically crass move when he filed a complaint with the New Brunswick Human Rights Commission charging the provincial government and two high-speed Internet service providers with discrimination against rural residents of New Brunswick. Citing the province’s Human Rights Act, Carr claimed rural households situated on the margins of the province’s industrialized sectors were being discriminated against because they lacked broadband connectivity and were forced to suffer through slow Internet and high prices (dial-up and satellite Internet service being the only options available). Although the issue of high-speed Internet access for rural residents was politically quite viable, the complaint was met with a mixture of bewilderment and ridicule. After all, who could seriously argue that broadband was a human right?

What makes this story so rich notwithstanding its political banality is that it captures the dramatic shift in perception over the place of the Internet in society. In just over a decade, what seemed to be a casual distraction or a useful but unnecessary tool of commerce has taken on new meaning. Perhaps the most recent and popular example of the Internet’s impact on American society is then-Presidential candidate Barack Obama’s unprecedented use of the Internet to win the 2008 presidential election. Often compared to Franklin D. Roosevelt’s relationship to radio and John F. Kennedy’s to television, Obama’s relationship to the Internet is predicted to usher in a new era of “massive experimentation not only in the US but also in the rest of the world.”

Of course, online political campaigning represents only one end of the democratic process’s utilization of the Web. The intended beneficiaries of the democratic process, the American citizenry, especially have seen their lives take on a virtual valence. With more and more services moving online—governmental, educational, public utilities, banking, etc.—and political participation becoming increasingly mapped onto online participation, Internet access is no longer an object of idle curiosity for the average American but a must-have resource. The Internet is a medium like no medium before it: we are, perhaps literally, swaddled in it. If it were suddenly pulled out from under us, we would become very vulnerable.

What we have here, simply put, is a political and economic agency whose condition of possibility is a technological and cultural revolution.

This Note argues that it is not so ridiculous to consider the Internet a basic human right. If the federal Constitution lacks the language to protect Internet access as a constitutional right, then in the spirit of Justice Brandeis’s famous “laboratories of democracy” metaphor I argue state constitutions, as vehicles of the kinds of positive rights not included in the federal Constitution, recognize the Internet as a constitutionally protected state right. Part I looks to the international community for a background on current treatment of Internet access as a right, as only Greece and Estonia have enshrined Internet access as constitutionally protected rights, and the United Nations is contemplating following suit. Part II discusses state-provided social services qua constitutionally sanctioned positive rights and how they are similar to Internet connectivity as being crucial to effective living and informed participation in the democratic process, and why states need to intervene in order to safeguard universal and affordable access to this technology. Part III looks at how states would be specifically obliged to carry out their responsibilities under such a constitutional provision. It could be as minimal as subsidizing the infrastructure or as strong as providing free laptops to children (perhaps modeled on the One Laptop Per Child or Classmate PC initiatives) in tandem with already existing duties to provide free public schooling. This last part is especially troublesome for me since I'm not a gear and bolts kind of guy. That's why I’m hoping Moglen and his students can help me.

-- AlfonsoJimenez - 13 Nov 2008

See my first paper last semester at http://moglen.law.columbia.edu/twiki/bin/view/LawContempSoc/DanielHarris-FirstPaper

-- DanielHarris - 14 Nov 2008

I haven't any problem with your reusing material, but you can't satisfy the requirement of an essay by posting a part of something else that won't stand alone. You could use this space to provide yourself with a confined and clarified version of your larger argument, but you can't meet my requirement to see how you analyze the problems by posting the roadmap to an analysis that doesn't exist yet.

As Dan Harris points out by referring to his paper from Perspectives, and my comment on it, I'm in sympathy with your goal, as many other contemporary observers are. I will provide my own version of the argument in the other half of this sequence next semester. But for now let me point out the impossibility of making your argument without dealing with complex federalism issues your roadmap suggests you intend to ignore. Large areas of the factual and legal substrate for the implementation of a proposal such as yours are already fully preempted by federal legislation, and in some cases that legislation appears to be implementing an express federal constitutional directive, while in others it grows out of a Congressional power deemed exclusive. Without answers to questions about preemption in the technical and conceptual sense, and without overruling more Supreme Court cases than I can easily count, the idea of a state positive right reduces itself pretty quickly to utilities regulatory policy expressed through rate-setting and the other areas of infrastructure regulation that Congress has only partially preempted.

So why not jettison the constitutional folderol and explain the implementation of a state-funded universal service policy that will be stillborn for the simpler and less fundamental reason that no state government is going to have any money for the next few years? If you really want to discuss constitutionalization of universal service, it looks to me like the federal power is the only game in town, and nothing in your existing beginning of an essay gives me any reason to change my mind.

-- EbenMoglen - 15 Nov 2008