Bridging the Digital Chasm Through the Fundamental Right to Technology

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 1, Fall 2020

75

Bridging the Digital Chasm through the

Fundamental Right to Technology

Haochen Sun*

The COVID-19 pandemic exposed extreme inequities in Internet access

throughout the United States. It is estimated that approximately 42 million

American people still lacked the capacity to purchase broadband Internet access

as of February 2020. Given the scale of this social problem and the urgent need to

address it, this Article suggests that it is time to recognize a new fundamental right

to technology as a liberty protected by the Fourteenth Amendment to the U.S.

Constitution. This new right, if recognized and protected, would stimulate a

paradigm shift. It would expand Internet access by triggering proactive

governmental measures, enhanced judicial protection, and scrutiny of technology

companies’ responsibilities.

I. INTRODUCTION ................................................................................................. 76

II. ROOTS OF INEQUITIES IN ACCESS TO THE INTERNET ...................................... 77

III. INTERNET ACCESS AND THE FUNDAMENTAL RIGHT TO TECHNOLOGY ......... 79

A. The Internet as a Fundamental Technology ................................................ 80

B. The Internet and COVID-19........................................................................ 81

C. Global Recognition ..................................................................................... 83

IV. RECOGNIZING THE FUNDAMENTAL RIGHT TO TECHNOLOGY ....................... 85

A. Nature and Scope of the New Right ............................................................ 85

B. Objections Against the New Right ............................................................... 86

V. PROTECTING THE FUNDAMENTAL RIGHT TO TECHNOLOGY ........................... 88

A. Proactive Protection by the Government .................................................... 88

B. Enhanced Judicial Protection ..................................................................... 90

C. Private Companies’ Responsibilities .......................................................... 92

VI. CONCLUSION .................................................................................................. 92

* Associate Professor of Law, University of Hong Kong Faculty of Law. I benefited greatly from

presenting the first draft of this Article at the 2019 HKU Technology Law Symposium: Rising Up to Legal

Challenges in the Age of Artificial Intelligence conference hosted by the University of Hong Kong. I am

grateful to Anupam Chander and Anna Wu for their helpful conversations or comments. © 2021, Haochen

Sun.

76 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

I. INTRODUCTION

The coronavirus (COVID-19) pandemic exposed within America severe

inequities in Internet access. Amid the multiple rounds of lockdowns, around 50

million American students relied on the Internet to receive their education.1

However, 9.7 million of the students had no reliable access to the Internet in their

homes.2 As an emergency measure and despite health risks, some schools resorted

to installing WiFi networks for students to access the Internet in school parking

lots. 3 These 9.7 million young people also lack access to Netflix, TikTok,

YouTube, and other forms of social media entertainment.4 All have become

important means of defying boredom, loneliness, and even despair during the

pandemic.5 Worse still, with virtually all health information about combating

COVID-19 developing online, lack of Internet access can be a matter of life or

death.6

Back in 2010, the Federal Communications Commission (FCC) committed to

ensuring all Americans had access to broadband Internet by 2020 through its

National Broadband Plan.7 In 2015, President Obama proclaimed that the Internet

is “no longer a luxury” for American people.8 Yet the reality is that as of February

2020, 42 million American people still lacked the capacity to purchase broadband

Internet access.9 The COVID-19 pandemic has made clear that this digital divide,

1. Enjoli Francis, Organizations Help Kids Bridge Digital Schooling Divide by Providing Internet

Learning Tools, ABC NEWS (Sept. 22, 2020, 6:30 PM),

https://abcnews.go.com/Technology/organizations-kids-bridge-digital-schooling-divide-providing-

internet/story?id=73146197.

2. Interactive Map: America’s Unconnected Students, DIGITAL BRIDGE K-12

https://digitalbridgek12.org/toolkit/assess-need/connectivity-map (last visited Dec. 6, 2020).

3. Cecilia Kang, Parking Lots Have Become a Digital Lifeline, N.Y. TIMES (May 5, 2020),

https://www.nytimes.com/2020/05/05/technology/parking-lots-wifi-coronavirus.html.

4. Tony Romm, ‘It Shouldn’t Take a Pandemic’: Coronavirus Exposes Internet Inequality Among

U.S. Students as Schools Close Their Doors, WASH. POST (Mar. 16, 2020, 6:22 AM),

https://www.washingtonpost.com/technology/2020/03/16/schools-internet-inequality-coronavirus.

5. See, e.g., AJ Willingham, Stuck at Home, Families Find a New Way to Bond: Creating TikTok

Videos, CNN (Apr. 19, 2020, 1:29 PM), https://edition.cnn.com/2020/04/19/us/tiktok-coronavirus-

quarantine-dance-trnd/index.html; Derrick Bryson Taylor, The Social Media Challenges Helping Keep

Boredom at Bay, N.Y. TIMES (Apr. 22, 2020), https://www.nytimes.com/2020/04/22/style/challenges-

social-media-coronavirus.html.

6. See Press Release, United Nations, Digital Divide ‘a Matter of Life and Death’ amid COVID-19

Crisis, Secretary-General Warns Virtual Meeting, Stressing Universal Connectivity Key for Health,

Development (June 11, 2020), https://www.un.org/press/en/2020/sgsm20118.doc.htm; Amanda Holpuch,

US’s Digital Divide ‘is Going to Kill People’ as COVID-19 Exposes Inequalities, THE GUARDIAN (Apr.

13, 2020, 8:08 AM), https://www.theguardian.com/world/2020/apr/13/coronavirus-COVID-19-exposes-

cracks-us-digital-divide.

7. See FED. COMMC’NS COMM’N, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 135-

136 (2010), https://transition.fcc.gov/national-broadband-plan/national-broadband-plan.pdf.

8. Presidential Memorandum, THE WHITE HOUSE, Expanding Broadband Deployment and

Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training (Mar. 23, 2015),

https://obamawhitehouse.archives.gov/the-press-office/2015/03/23/presidential-memorandum-

expanding-broadband-deployment-and-adoption-addr.

9. John Busby, Julia Tanberk & BroadbandNow Team, FCC Reports Broadband Unavailable to

21.3 Million Americans, BroadbandNow Study Indicates 42 Million Do Not Have Access,