A Human Rights Perspective on U.S. Courts and the Constitutional Regulation of the Internet

Abstract

This chapter examines the approaches used by the U.S. Supreme Court and the lower U.S. federal courts to contend with the challenges presented by new Internet technologies for the protection of constitutional rights. The chapter first discusses judicial regulation of the Internet as a story of inter-branch power sharing. Regulation has been most effective, and most coherent, when Congress and the courts are engaged in dialogue with one another in ways that play to the strengths of each. Second, the chapter argues that although U.S. federal courts have been relatively effective in updating the individual constitutional protections to meet the demands of new technologies, their efforts in this respect have been hampered by the lack of a comprehensive constitutional theory for understanding the effects of new technologies on individual rights. The chapter proposes the international human right to equality as a frame that better recognizes the significance of access to the Internet in promoting the realization of rights and orients the discussion on the needs and experiences of the user with respect to both speech and privacy online.

Keywords: human rights, internet, internet governance, courts, cyberlaw, technology