The Internet: A Public Utility, A Human Right
For many Americans, it’s hard to imagine a world without the internet. How would you look up the news or find directions to the grocery store? How would you order airline tickets? From dating to grocery shopping to staying connected with friends or searching for an apartment, the internet is woven into the fabric of our lives. In the wake of COVID-19, it’s easy to see how critical internet-based services have become. A Pew Research study found that 87% of Americans view the internet as essential or important during the pandemic (Vogels, 2020). As offices around the world close to mitigate the pandemic, the importance of the internet at home has become even more critical to the already majority of Americans who rely on the internet for their jobs (Pew, 2008). With major companies like Twitter signally that work-from-home may be here to stay (Sherr, 2020) and an abundance of Americans relying on the internet for basic needs, the question of whether or not the government ought to treat the internet as a public utility has intensified.
Amid the current pandemic, 37% of Americans believe that the government has a role in providing internet services at home (Vogels, 2020). Even prior to the current health crisis, the UN recognized the internet as a human right, stating so in an unenforced 2016 declaration (Howell, 2016). By comparing the history of the creation of other public utilities in America, looking at current internet offerings, and examining some potential downsides like privacy concerns, I hope to make the case that considering the internet a public utility and a human right is appropriate, consistent with the founding of America, and critical for American life.
What is a Public Utility, What Are Human Rights?
In the United States, public utilities are considered natural monopolies due to the infrastructure needed for their provisioning; water, electricity, telecommunications (e.g., phone lines), and the postal service are all good examples. These organizations may either be government-owned or private companies regulated by government commissions.
It may be hard to believe, but something as ubiquitous as electricity wasn’t always considered a public utility in the United States. The story of a monopolistic power turned public utility played out a century ago in America when private electrical companies chose to only serve well-off populations, ignoring rural America (Crawford, 2014). It wasn’t until President Franklin Delano Roosevelt encouraged Congress to pass the Federal Power Act of 1935 that the government wrested power away from private companies (PBS, 2001). Though this would eventually give way to deregulation in the 90s, the Federal Power Act allowed for the government to ensure fair prices and nondiscriminatory service leading to rapid growth and declining prices (PBS, 2001).
This example outlines some clear factors of how the US defines (and regulates) public utilities. Regulation is meant to allow for a service to be provided fairly and equally: that means fairly priced and with widespread accessibility. Best put (and often referenced in US legal proceedings), a public utility is an organizational entity that operates in the public interest (Geffs, 1937). That question of “what is in the public interest” is often debated. But as I hope to demonstrate through this piece, America’s Founding Fathers had some clear ideas of what that was.
But what about human rights? In his paper on free internet access, ethicist Dr. Merten Reglitz of the University of Birmingham outlines a definition of human rights: “Moral human rights accordingly are based on universal human interests that are important and urgent enough to generate negative duties of non-interference and/or positive duties of provision in others” (Reglitz, 2019). Reglitz goes on to reference moral philosopher John Tasioulas, stating that human rights refer to “basic universal interests” (Tasioulas, 2015) that “are essential for a minimally decent life” (Reglitz, 2019).
In the 1948 Universal Declaration of Human Rights, the United Nations defined human rights as:
The right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and more. Everyone is entitled to these rights, without discrimination (UN, 1948).
The United States discusses human rights in the United States Bill of Rights, guaranteeing freedom of speech and assembly among others. This is built on by other congressional acts like the Civil Rights Act of 1964 which outlaws discrimination (78 Stat. 241). But it is in the Declaration of Independence that the United States first begins to define “unalienable” human rights as “life, liberty, and the pursuit of happiness” (Jefferson, 1776). While certainly broad, these human rights definitions begin to outline the relevance of public utilities.
So where does the internet fit into these definitions?
The Internet is Critical to American Life
In a 2015 speech, former FCC Commissioner Jessica Rosenworcel had a lot to say about the importance of the internet to the American public. With youth in mind, she acknowledged that in America, nearly seven in ten teachers assign homework that requires access to the internet. Yet due in part to affordability, one in three households does not have high-speed internet access (Rosenworcel, 2015). Rosenworcel further acknowledged that applying for scholarships and jobs becomes even more difficult when there isn’t access to broadband services. In fact, a study from the same year saw 79% of Americans using online resources to look for jobs (Smith, 2015). Rosenworcel saw this disparity in internet access as a major problem that could have an impact on America for generations. “That loss is more than individual,” Rosenworcel said. “That’s a loss to our collective human capital and shared economic future that we need to address” (Rosenworcel, 2015).
And now in the COVID era, when learning institutions have been forced online, what resources are available to Americans without internet access? Constrained access to the internet as an educational resource quickly has become exacerbated. While the constitution does not formally guarantee the right to education (Wong, 2018), this could be viewed as a violation of the mandates of each State to provide a public education (Parker, 2016). But more so, it raises an important question for America: should young Americans be forced to pay extra for internet access just so they can do their homework?
Internet access is also rapidly becoming more critical for civic engagement. Even as far back as 2013, almost 40% of Americans used the internet to contact public officials or speak out in a public forum (Smith, 2013). Many of the major world events and movements of the last decade have proven the critical role that open access to information via the internet plays in checking power, whether through the use of Twitter to disseminate information in the Arab Spring (Wolfsfeld, 2013) or for the MeToo (Khomami, 2017) and Black Lives Matter (Anderson, Toor, 2018) movements, or the increasing use of gofundme as a release valve for the needs of suffering Americans (Young, 2019).
From healthcare.gov to filing taxes online or renewing a driver’s license, federal, state, and city governments rely more and more on access to online services. And online is where the youth of America is: according to a 2019 Pew report, internet use (whether broadband or mobile data) among 18–29-year-olds is ubiquitous, up from 70% just 20 years ago (Pew, 2019).
We’re also using the internet as a critical communication mechanism to stay in touch with family and friends. Over 90% of Americans say they use social media to do just that (Smith, 2011). For those who have access, the internet is a critical part of our lives.
America’s Costly (and Manipulative) Internet Infrastructure
But surely for those Americans who have the internet, they’re getting a pretty good deal, right? 73% of Americans use broadband at home (Anderson, 2019), but an increasing amount of Americans are turning to smartphones primarily for access to information like the news (Walker 2019). But regardless of how people are accessing the internet, they’re overpaying for terrible service.
Those Americans who do pay for home broadband or wireless 4G connections get to enjoy some of the highest prices and worst coverage on the planet (Bode, Nov 2018). Why do Americans have to pay so much? For home broadband, more often than not, consumers don’t have a choice of more than one Internet Service Provider (ISP) in their area (Bode, Nov 2018). According to a 2015 report, 61% of American households have one or zero choices when it comes to ISPs in their area (O’Reilly, 2015). And shockingly, this lack of choice leading to higher prices may be by design. A Center for Public Integrity study found that ISPs divide up territory to avoid competition (Holmes, 2015). The study outlines how people in France often have the choice of six ISPs at 3x less cost than an American city like tech-focused Seattle (Holmes, 2015).
And if that wasn’t enough, ISPs are finding other creative ways to drive Americans towards higher-priced plans. A study by Northeastern University found that ISPs deliberately slow down video streaming to prompt users to pay for faster service (Bracci, 2018). Consumers are also forced to haggle with ISPs for promotional prices that expire without warning (Willcox, 2019).
It’s not any better on our phones either. America has one of the worst 4G speeds in the world, and yet is the 2nd most expensive (Kushnick, 2017). Americans on average pay $60 in overcharge fees, and 40% of data usage is for services or plans of which customers are unaware (Kushnick, 2017). And it seems like these wireless companies don’t care much about who they charge and when. Verizon came under heavy criticism when, thanks to weakened regulation and no real oversight, they deliberately slowed down the cell connection used by firefighters battling wildfires (Bode, Aug 2018).
In 2020, there are 26 million Americans who don’t have access to broadband internet (Salway, 2020). Of those who don’t have the internet at home, 50% say it’s because it’s too expensive (Anderson, 2019). A Microsoft study estimated an even higher number of Americans (162.8 million (Tung, 2019)) didn’t have reliable access to high-speed internet.
While 10% of Americans do not use the internet at all, the majority of that group are lower-income, older, rural, and black or hispanic (Anderson, Perren, 2019) (Anderson, Kumar, 2019). ISPs have also lied about their 4G internet access in rural areas, overstating their coverage (Kan, 2019) and further exacerbating both inequities and the unwillingness of ISPs to act in the public interest under current regulation.
Granted, amid the COVID crisis, some ISPs have shown leniency in offering reduced fees and temporary halting of penalties (Alba, 2020) in partnership with the FCC’s Keep Americans Connected Pledge (FCC, 2020). But considering the massive coverage gaps, high prices, and low quality, can Americans really expect to rely on the kindness of existing ISPs as the internet becomes more crucial to our everyday lives?
While much has been made about the transformative speeds of the upcoming 5G network, amidst infrastructure-build hiccups, coverage and speed claims have yet to be proven (Pergoraro, 2019). It also seems awfully hard to trust those ISPs who seem so willing to treat customers so poorly.
The Fight for a Public Utility Designation
In 2015, President Obama recognized the failure of ISPs. “For most Americans, the Internet has become an essential part of everyday communication and everyday life,” said Obama, calling for the Federal Communications Commission (FCC) to designate the internet as a public utility (Ruiz, 2015). Then-FCC Chairman Tom Wheeler said,“[the internet is] too important to let broadband providers be the ones making the rules” (Ruiz, 2015). And in a vote along party lines, the internet was designated as a Title II Common Carrier in hopes of preventing private ISPs from blocking content, throttling data, and limiting competition (Ruiz, 2015). However, future and current FCC Chair Ajit Pai argued that the internet was fine how it was, and he would later have the last laugh.
The Title II designation originally came from the Communications Act of 1934, which established the FCC and allows for the government to more strictly regulate communications services like telephone and radio (Low, 2017). By designating the internet as Title II, the government would have more control over telling ISPs what they could and couldn’t do. It was hoped that that might lead to better coverage, better prices, and better service.
But then in 2018, newly appointed Chair Ajit Pai led the passing of the Restoring of Internet Freedom Order (FCC, 2019) which rolled back the Obama-era rules, redesignating the internet as a Title I Information technology. The looser regulation allowed in Title I relies on ISPs voluntarily providing data to the government, permitting them to continue their shady practices (Low, 2017).
ISPs argue that the stricter regulation of Title II would stifle innovation, as they wouldn’t have incentive to invest in further infrastructure and develop new technologies — a claim with little substantiated evidence (D’Souza, 2019).
After a Washington DC circuit court rejected an appeal against Pai’s order, FCC Commissioner Jessica Rosenworcel argued that the FCC was “on the wrong side of the American people and the wrong side of history” (Rosenworcel, 2019). Notably, the circuit court allowed for states to retain the ability to regulate the internet as they deem appropriate (Coren, 2019). At least four states, including California, Oregon, Washington, and Vermont have passed laws against certain types of data throttling thanks to lobbying by ISPs (Morton, 2019).
Neither Snow Nor Rain…Information as Vital to Democracy
One of the more recognizable yet surprising comparisons to internet access has been a part of American life since its founding. There is perhaps no better parallel to the essential nature of the internet than the creation of the American postal service.
America’s Founding Fathers like George Washington recognized the importance of access to information for the success of a young nation (USPS, 2010). In 1788, Washington wrote about the free press and the importance of being able to distribute information through the postal system:
“I consider such easy vehicles of knowledge, more happily calculated than any other, to preserve the liberty, stimulate the industry, and meliorate the morals of an enlightened and free People” (Fitzpatrick, 1939).
Not only was information distributed through the post so valuable to democracy, Washington saw it as critical to American industry. The Founding Fathers viewed the distribution of information so essential that they had the US Treasury subsidize postage on periodicals (USPS, 2010).
Washington saw the creation of the US Post Office as a direct representation of democracy. While postal services in Europe were expensive and generally only used by the rich and the state, post in the US would be accessible to everyone (Cooper, 2018). Not only was the Post Office a communications revolution for America, but it also led to the development of significant infrastructure (e.g., roads) to make the delivery more efficient (Cooper, 2018).
Nearly 200 years later in 1958, Congress passed the Postal Policy Act, declaring the post office as a public utility. The act specifically cites that, due to the extraordinary cost of running the post, the existence of the then Post Office Department “could only be justified as being in the national welfare” (72 Stat. 134). This act also acknowledges the postal services as essential to “the promotion of social, cultural, intellectual, and the commercial intercourse among the people of the United States” (72 Stat. 135). In addition, the Postal Policy Act calls for equitable rates and fees, as well as efficient service (72 Stat. 135).
The Post Office and the distribution of information are so interwoven into the fabric of America that it is the oldest federal agency and the only agency included in the Constitution (Cooper, 2018).
The Postal Reorganization Act of 1970 redesignated the United States Postal Service as an independent organization of the Executive Branch (USPS, 1999). Its mission statement to this day reflects the recognition of Founding Fathers like George Washington that fair and accessible information is critical to the health of our nation. It reads:
The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities. (84 Stat. 719)
With the case of the US Post Office in mind, it becomes easier to see why in our information age, the ultimate information tool has historical and Constitutional precedent as a public utility.
Especially in the wake of a USPS on the brink of collapse (Fandos, 2020), it’s more critical than ever for our democracy that Americans have access to information. If the mail is no longer a guarantee, we lose a pillar of American democracy.
What are the Solutions?
Municipal Broadband
In 2007, when Chattanooga, Tennessee’s municipal power company Electric Power Board of Chattanooga (EPB) moved to update the city’s power grid, they realized they could set up high-speed fiber optic internet cables for everyone’s home (Moscowitz, 2016). Three years later they became the first city in the United States to offer municipal broadband at half the price and 85% faster speeds than Comcast. They also offered discounts for lower-income residents. By 2015, municipal broadband had saved citizens of Chattanooga money and generated an additional $865.3 million in revenue (Flessner, 2015). This set a blueprint for cities across the country.
Unsurprisingly, the biggest opposition to municipal broadband has been ISPs. Comcast suggested that municipal broadband creates unfair competition for ISPs (Fung, 2014) even going as far as lobbying to restrict municipal broadbands from expanding beyond city limits (Moscowitz, 2016). Municipal broadband did see vocal support from President Obama who advocated for state and city rights to do what is best for their communities (The White House, 2015).
When the city of Philadelphia sought to establish a municipal wireless broadband service, pressure from ISP lobbyists forced the passing of state restrictions on municipal broadband projects (Abraham, 2015). This ultimately led to a disbanding of the project after much infrastructure had been built at the taxpayers' expense (Abraham, 2015).
Today, while some states like Washington have regulation in place that prevents municipal broadband partnerships between private companies and local governments (Koebler, 2015), the FCC suggested that it sides with ISPs and would ironically, make efforts to protect existing “competition” (Teale, 2019).
Despite protests by ISPs, municipal broadband now exists in some form in over 900 communities across the United States (Community Networks, 2020). Of course, there are some examples of municipal broadband failings. In 2011, Google announced a plan to bring affordable high-speed fiber internet to Kansas City to much fanfare (Rogers, 2017). But years later, customers are struggling with outages, and an admission by Google that they have much learning to do to provide a quality product (Palmer, 2019).
While for some communities the tax investment may be considerable — half of municipal broadband initiatives don’t bring in enough operating revenue (Yoo, 2017) — municipal broadband may still offer a reasonable alternative to existing ISP service, fit comfortably within federal regulation, and provide the scope of other public utilities.
Federal Broadband
If the internet could be wrestled back to Title II Common Carrier designation, the federal government may have more precedent to initiate a national broadband service.
In 2010, initiated by Congress, the FCC did outline a plan for how the country could address the many issues faced with the internet (FCC, 2010): it was called the National Broadband Plan, and it ambitiously road-mapped benchmarks for where American broadband should be by 2020. Of course, with little actual regulation motivating ISPs to take the initiative, nothing has really been accomplished (Terry, 2019). It would seem that in order to remove power from the ISPs to form any sort of federal broadband initiative, congress would need to pass a Federal Internet Act.
Other countries have taken steps toward national broadband. Last year, Ireland passed a 3 billion euro National Broadband Plan to bring high-speed internet to millions, especially rural people around the country (Burke, 2019). Australia made a controversial (and perhaps poorly executed) attempt to provide fiber internet to everyone in the country (Koziol, 2019). New Zealand’s Ultrafast Broadband Initiative is expected to bring high-speed internet to 87% of New Zealanders by the end of 2022 (Broadband Development Update, 2019). In Sweden, the majority of Swedes have access to high-speed internet at low costs thanks to public funding that is willing to operate at a loss (Bylund, 2014). And South Korea continues to boast the fastest internet in the world by investing nearly a billion dollars into 10Gb internet speeds managed by the country’s primary internet provider, SK Broadband (Chong, 2018).
National internet initiatives, whether government-owned or regulated, appear to find some level of success in many places around the world.
Trouble in Cyberspace
Of course, whether municipal or federal, government-regulated or owned, access to the internet poses problems from privacy to misinformation.
Without clear regulation and third-party arbitration, what’s to stop a government-owned broadband service from using data to keep track of activity by Americans and rank them in a credit system like in China (Ma, 2018)? Users may be forced to utilize 3rd-party VPNs more so than they already are (Dinha, 2019) to protect themselves from being tracked. Whereas a national ISP may use citizen data for tracking purposes, a municipal broadband system may offer some protection from federal oversight.
Despite existing throttling by ISPs, might a federal internet with too much control also ultimately regulate the content that we’re able to access as in China or Russia (Wakefield, 2019)? Here, state or city broadband may offer some protection, as may a regulated private industry.
If the government decided to hamper dissent, would we run the risk of the internet being shut down like in Myanmar or Iran (Solomon, 2020) (Newman, 2019), which the United Nations explicitly stated is a human rights violation (Newman, 2019)?
While clearly competition isn’t blooming under a deregulated industry, would a federal internet quash any hope for competitive innovation under a more regulated space? And further, in light of the Myanmar genocide sparked by false Facebook posts (Mozur, 2018), how might misinformation either purported by the government or outside forces be regulated or incited by a federally-owned internet. Would the majority of Americans want President Trump to decide what information is presented as true or false?
Where Does the Internet Belong?
Does the internet function as a public utility? Yes. Is it consistent with human rights designations? Yes. As such, the United States government should designate the internet as a public utility through Title II or a separate act. It should fund municipal broadband by investing locally or in partnership with existing ISPs, prioritizing rural areas. To address concerns about privacy, the government should establish an internet bill of rights covering data security and privacy online; this would be a federal mandate that governs how municipal or private broadband operates. As consistent with all public utilities, the government should make high-speed internet available to all citizens at a reasonable low cost, or a discounted cost for people in low-income brackets.
Looking back at George Washington’s view of the proliferation of information as being pivotal to the protection of American democracy, it’s easy to see internet access as having become essential for a minimally decent life, but also to help protect the American way of life. Washington and the Founding Fathers saw the Postal Service as their highest-tech information distribution solution at that time. The internet carries on that tradition as an essential information distributor that is woven into the fabric of American democracy.
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