Are Americans entitled to internet access as a matter of constitutional right?
What was once a highly theoretical question becomes increasingly relevant in a world where the internet is a daily part of life.
With courts already grappling with how the Fourth Amendment applies to internet activity, it may not be too long before someone argues that internet access itself is a fundamental right guaranteed by America’s political system.
Already, courts have ruled that internet access is a right that cannot be arbitrarily denied by the government.
Much of this analysis has come from appellate courts reviewing internet bans imposed on sexual predators. For example, in United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) the Third Circuit overturned a lifetime internet ban on a defendant with an “extensive criminal history,” which included a “strong thread of sexual offenses to minors and child pornography” in his criminal record. Id. at 404.
Noting that a lifetime ban would be “unprecedented,” the Third Circuit further observed that internet bans are “draconian” because they hamper a “defendant’s employment opportunities upon release,” and limit “freedoms of speech and association.” Id. at 408
While internet access may not be arbitrarily revoked, is access itself guaranteed?
One argument would be a simple “no”. After all, the internet is nowhere mentioned in the Constitution. And since the 1970s, federal courts have resisted recognizing new constitutional rights that are not explicitly spelled out by the text.
On the other hand, a reasonable argument could be made that the internet furthers key rights such as freedom of speech and expression, freedom of assembly, freedom of the press, and the right to petition the government — all protected freedoms under the First Amendment.
More so than television technology, the internet strikes at the heart of Americans’ everyday social interactions and the way they live their lives.
And as recent events in the Middle East appear to indicate, the internet has become a powerful tool in promoting democratic accountability.
State constitutions, as well may confer greater protections related to internet access than the federal Constitution.
In California, for example, people have free speech rights at private malls under the California Constitution that are not recognized under the federal First Amendment. Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007). It is conceivable that California, or another state, could recognize a broad right to internet access under its own state constitution.
Internationally, Finland has already declared internet access — specifically broadband access — a guaranteed legal right.
Estonia, France, Greece, Spain and Costa Rica appear to be other countries that have guaranteed internet access in some shape or form.
Indeed, future American administrations could make a global internet treaty a centerpiece of a human rights agenda founded on internet access, government accountability and transparency, and broad-based protections related to freedom of expression and conscience.