A Human Rights Debate Reaches the FCC

Does everyone have a fundamental right to access the Internet?

Over the past two weeks, a debate at least three years old has reached the Federal Communications Commission: Does everyone have a fundamental right to access the Internet? That is – Is Internet access a human right?

The Internet Innovation Alliance asked FCC Commissioner Michael O’Rielly to share his thoughts on the appropriate role for regulators in an “expanding broadband economy” on June 25. What he offered were five basic principles he said are not the totality of all his beliefs, but a good starting point “for any conversation involving Federal regulators and Internet policy. And if followed properly,” he stressed, “may just prevent the government from crushing the greatest man-made invention of my lifetime.” It might have surprised some then when Commissioner O’Rielly highlighted his belief that “Internet access is not a necessity or human right.” Here’s what he said:

O’Rielly: It is important to note that Internet access is not a necessity in the day-to-day lives of Americans and doesn’t even come close to the threshold to be considered a basic human right.
It is important to note that Internet access is not a necessity in the day-to-day lives of Americans and doesn’t even come close to the threshold to be considered a basic human right. I am not in any way trying to diminish the significance of the Internet in our daily lives. I recognized earlier how important it may be for individuals and society as a whole. But, people do a disservice by overstating its relevancy or stature in people’s lives. People can and do live without Internet access, and many lead very successful lives. Instead, the term “necessity” should be reserved to those items that humans cannot live without, such as food, shelter, and water.

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.

From a regulator’s perspective, it is important to recognize the difference between a necessity or a human right and goods such as access to the Internet. Avoiding the use of such rhetorical traps is wise.

Clyburn: Not a necessity?

This week, on July 8, FCC Commissioner Mignon Clyburn, speaking at a National Action Network conference, offered a rebuttal, although without mentioning Commissioner O’Rielly. In her speech, she reiterated the need to redesign the FCC’s Lifeline program, which for 30 years has made telephone service more affordable for low income households, to make Internet access more affordable. She said:

[L]et me warn you, any proposed transition will not come easy, for there are those who publicly proclaim that Internet access is “not a necessity”!

Not a necessity… during a time when the majority of Fortune 500 companies post new job listings strictly on websites? And where if you are fortunate enough to secure a position, your new boss expects you to have an e-mail address?

Not a necessity… where, in a growing number of states, those who are income-eligible can only apply for benefits or aid online?

Not a necessity… when most colleges and universities post and accept student admissions electronically?

Not a necessity… as the evidence grows daily, on how technology is bridging long-standing gaps when it comes to the delivery, quality of service, and cost efficiencies for access to health care and wellness?

And when you make that face-to-face appointment or conduct business in person, when was the last time you bought or referred to a folded map when you traveled to that destination?

Commissioner Clyburn stressed that the Internet makes possible many opportunities – in employment, education, healthcare, voting – that are neither trivial nor luxuries. She commended libraries for their role in providing communities access to the Internet, but also recognized the limitations libraries face providing access to so many with limited hours and workstations available.

Although Commissioner O’Rielly noted that “People can and do live without Internet access, and many lead very successful lives”, Commissioner Clyburn identified the divide between users and non-users: Over 90% of households making $75,000 a year have access to the Internet, but for families making under $30,000 a year, only half can access the Web at home.

United Nations: Ensuring Universal Access to the Internet Should be a Priority for All States

UN report: Ensuring universal access to the Internet should be a priority

As noted above, this is not an entirely new debate. In May 2011, a United Nations report of Frank La Rue, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, found, "Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all states.” From the report:

The Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies.

Indeed, the recent wave of demonstrations in countries across the Middle East and North African region has shown the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and better respect for human rights.

The report notes that while the Internet has been in existence since the 1960s, it is the way people now use the Internet, across the world and across age groups, with "incorporation into virtually every aspect of modern human life," that makes the Internet an unprecedented force. La Rue describes the Internet as "revolutionary" and unlike any other communication medium such as radio, television or printed publications, which are "based on one-way transmission of information." The Internet, on the other hand, is an "interactive medium" that allows not only for the sharing of information, but also "collaboration in the creation of content," which makes people "no longer passive recipients, but also active publishers of information." As such, the Internet can be a tool of empowerment and aid in the protection of and access to other human rights -- as well as contributing to growth economically, socially and politically -- benefiting mankind as a whole.

Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information.

Furthermore, producers of traditional media can also use the Internet to greatly expand their audiences at nominal cost. More generally, by enabling individuals to exchange information and ideas instantaneously and inexpensively across national borders, the Internet allows access to information and knowledge that was previously unattainable.

This, in turn, contributes to the discovery of the truth and progress of society as a whole.

La Rue was fully cognizant that true, universal Internet access could not be achieved overnight, but also found that was insufficient reason to not strive for the goal:

Given that access to basic commodities such as electricity remains difficult in many developing States, the Special Rapporteur is acutely aware that universal access to the Internet for all individuals worldwide cannot be achieved instantly.

However, the Special Rapporteur reminds all States of their positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet.

Hence, States should adopt effective and concrete policies and strategies –- developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries -– to make the Internet widely available, accessible and affordable to all.

Even before the UN report, courts and parliaments in countries like France and Estonia have pronounced Internet access a human right. Moreover, the Universal Declaration of Human Rights, which was adopted by the UN General Assembly on December 10, 1948, includes a number of articles with rights that Internet access can have a profound impact on today:

  • Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
  • Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
  • Article 23: Everyone has the right to work, to free choice of employment.
  • Article 26: Everyone has the right to education.
  • Article 27: Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Cerf: Keep Separate the Technology and the Right

Cerf: A human right must be among the things we as humans need in order to lead healthy, meaningful lives

But in response to the 2011 LaRue UN report, Vinton Cerf, one of the “fathers of the Internet”, wrote an op-ed published by the New York Times arguing that technology, like the Internet, is “an enabler of rights, not a right itself.” [Longtime readers may recall our Debating Internet Rights in these pages in 2012.] He said the bar for something to be considered a human right is high -- it must be among the things we as humans need in order to lead healthy, meaningful lives. “It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things.” Here’s how Cerf illustrated his point: “At one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it.”

Cerf says the best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time.

But Cerf puts more stock in Internet access as a civil right – that is, a right conferred upon us by law, not intrinsic to us as human beings. He points to the US’s historical commitment to communications: although the government never decreed that everyone has a “right” to a telephone, it did come close to this with the notion of “universal service” — the idea that telephone service (and electricity, and now broadband Internet) must be available even in the most remote regions of the country. “When we accept this idea, we are edging into the idea of Internet access as a civil right, because ensuring access is a policy made by the government,” Cerf wrote. “The Internet has introduced an enormously accessible and egalitarian platform for creating, sharing and obtaining information on a global scale. As a result, we have new ways to allow people to exercise their human and civil rights.”

Cerf concludes: “Improving the Internet is just one means, albeit an important one, by which to improve the human condition. It must be done with an appreciation for the civil and human rights that deserve protection — without pretending that access itself is such a right.”

In response to Cerf's op-ed, Scott Edwards, the Managing Director of Crisis Prevention and Response at Amnesty International USA, wrote that technology is inseparable from the rights themselves:

Resting on the architecture of the Internet is a digital public space found in social and professional networking that rivals the richness of any physical town square. And—using Cerf’s logic—while access to the physical town square may not be a human right in isolation, it has always been for most inseparable from the right to association and expression. And denial of access to the town square through curfews, martial law, or emergency rules are tantamount to restriction on association and expression.

Conclusion: Why Is This a Debate at the FCC?

Why debate human right status when Internet access is already a civil right?

Strong arguments, it appears, can be made in a philosophical debate about Internet access as a human right. Although Cerf’s op-ed may be one the strongest arguments backing Commissioner O’Rielly’s recent stance, Cerf also highlights why O’Rielly’s speech was so surprising. As he himself stressed in the same speech last month, O'Rielly, as an FCC Commissioner, must follow the law. And, as Commissioner Clyburn noted in her response, Congress has directed the FCC to ensure that everyone, regardless of income, has access to advanced communications services. Congress also directed that such access should be affordable. Which means that Congress mandated closing the digital divide highlighted above. So why would an O'Rielly basic principle for regulators be that Internet access isn’t a human right when Congress has already made it a civil right?

By Kevin Taglang.