Infrastructural Entitlements and the Civil Right to Technology

Abstract

Years ago, Article 19 of the Universal Declaration of Human Rights postulated "the right...to seek, receive and impart information and ideas through any media and regardless of frontiers." At the time, it seemed like a relatively simple statement against government censorship and interference with the flow of information. Today, however, we see that this simple principle is at the heart of the conflict between the information society, property ownership, and the digital divide. Consider an example. Throughout the summer and fall of 2015, amidst a series of cinematic backdrops — the United Nations, Latin America, India and China — Mark Zuckerberg has lauded the value of internet access while launching Internet.org (now Free Basics), Facebook’s project to extend internet access to much of the world that lacks connectivity. “Internet access needs to be treated as an important enabler of human rights and human potential,” he told the United Nations. Almost immediately, the plan faced a fair bit of criticism from internet activists who argued that the initiative runs the risk of creating a large class of second-class citizens; a “walled garden,” as one person described it, “with the open internet just beyond their reach.”

This is the moment we are living in, a moment where governments – and private companies make pronouncements about the value of net neutrality and nondiscrimination — but at the same time, quietly opt for a limited notion of ‘branded access’ instead of a larger, freer, and more open platform to acquire information. At the same time, both private and public entities engage in massive filtering of information, in homes and public spaces across the world. Governments — in both the North and South — routinely intervene into the internal activities of Internet Service Providers to track and control information, raising privacy and censorship issues. All of these means of private and public control clearly impact a consumer's right to access information, but they also illustrate a growing tendency, shared by intellectual property owners and the state, to target specific types of Internet technologies in the process. Central to this moment is a quiet transition from public values — like openness and access to information — to private responsibility, facilitating the emergence of private companies who translate these larger goals into markets and opportunities for commercial consumption. This new generation of information-related human rights raise a foundational question: who should be responsible for this new growth, the government or private industry?

In 2014, Sir Tim Berners-Lee, who invented the World Wide Web and is a founder of the World Wide Web Foundation, called for the Internet to be a human right. Yet the question of whether there is a right to information technology, or a corollary right to Internet access, has been largely undertheorized by both scholars and lawyers. Part of the problem, it seems, is that without an overarching theory — statutory, constitutional, or otherwise — for addressing the relationship between technology and human rights, cases in both the United States and elsewhere are mired in doctrinal incoherence, limited significance, and opposition. Consequently, while the right to access information is at the heart of what is at stake, scholars must also recognize the growing importance of an emerging platform that focuses not just on information, but also on the vital role of technology itself.

This article attempts to provide a partial framework to explore the question of whether or not we can construe information technology as a sort of entitlement under human and civil rights discourse, and relatedly to shed light on the specific question of whether there is a right to internet access. Here, I explore the emergence of a new, corollary right to the right to access information: what I call the civil right to information technology. Special attention will also be paid to the ways in which the digital divide in less-wealthy contexts both challenges and illustrates the need for much more attention to be paid to this civil right to technology, and how it differs in important ways from a more general right to access information.

As I argue, this right can be characterized as part of a broad class of rights that are unique for their focus on the informational content of an entitlement, as well as the specific, vehicular technology that distributes and protects that right. I situate the right to internet access within this broad class of rights that I call “infrastructural entitlements,” and show how they emerge at the perfect intersection of economic, social, and political human rights. As I argue, infrastructural entitlements in information have been modeled, adapted, and transformed by the growing conflict between the control of intellectual property, the dominance of branded access, and the free flow of information.

In Part I of this Article, I explore the philosophical and constitutional underpinnings of the broad, human right to information in Article 19 of the Universal Declaration of Human Rights, paying close attention to the positive and negative aspects of that right. In Part II, I turn to the architecture of infrastructural entitlements with respect to information-oriented human rights. Drawing on parallels from the right to health, I discuss five different contours of a right to information technology: (1) nondiscrimination; (2) physical accessibility; (3) economic accessibility; (4) information accessibility; and (5) autonomous accessibility. Finally, in Part III, I discuss some potential applications of this right, drawing upon some pathways for future study and critical exploration.

Keywords: Human Rights, Internet Access, Technology and Human Rights, Right to Information