Inconceivable: Impossible Consent and Your Internet Service Provider

• Author: Abigail A. Kunkler
• Position: J.D., Georgetown University Law Center (expected May 2024); B.A., Knox College (2017)
• Pages: 871-885

Inconceivable: Impossible Consent and Your

Internet Service Provider

ABIGAIL A. KUNKLER*

INTRODUCTION

When you pick up the paper (or, more likely, pick out a blog post), it tells you

that the COVID-19 pandemic changed every aspect of how we relate to one

another. This misses the point. The pandemic has not changed everything—but it

has aggravated and stressed resource gaps in the United States. One example is

the desperate need for improved Internet access and increased infrastructure. For

years, activists and politicians have urged us to recognize internet access as a

public utility.

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This Note takes the position that the Internet is a public utility as true. This is discussed later in Section I.

Background. For further discussion, see generally Susan Crawford, Why Broadband Should Be a Utility,

BROADBAND COMMUNITIES MAG., Mar./Apr. 2019, at 50. See also S. DEREK TURNER, DIGITAL DENIED : THE

IMPACT OF SYSTEMIC RACIAL DISCRIMINATION ON HOME-INTERNET ADOPTION, FREEPRESS (2016), https://

www.freepress.net/sites/default/files/legacy-policy/digital_denied_free_press_report_december_2016.pdf [https://

perma.cc/BEV3-FV7S]; Elizabeth Warren, My Plan to Invest in Rural America, MEDIUM.COM (Aug. 7, 2019),

https://medium.com/@teamwarren/my-plan-to-invest-in-rural-america-94e3a80d88aa [https://perma.cc/9XF5-

PVRF]; Bernie Sanders, High-Speed Internet for All, BERNIESANDERS.COM, https://berniesanders.com/issues/

high-speed-internet-all/ [https://perma.cc/693M-AR52] (last accessed March 6, 2022).

These calls are particularly poignant as our activities are forced

online. We go to work, school, the bank, the tax preparer, and the courtroom—all

from a networked device.

This Note questions the precarious position of our right to privacy in the pres-

ent world where one cannot realistically opt-out of Internet service without losing

access to fundamental services necessary for day-to-day life. Section I gives

background information on the function of Internet service providers (ISPs) and

the “digital divide” faced by a considerable portion of Americans. Section II cri-

tiques the consent component of an ISP’s privacy policy and argues that such pol-

icies are, on their face, non-consentable. Section III proposes a new division of

the Federal Trade Commission (FTC) which evaluates these policies before they

are enacted. Finally, Section IV details how this proposal connects with the ethi-

cal obligations of the legal field. These updates are critical not just to consumer

rights, but to the ethical obligations (legal and otherwise) of the drafters, evalua-

tors, and enforcers of the contracts themselves. To be perfectly clear: this is

intended to be a band-aid solution—wider and more systemic change will be

needed.

* J.D., Georgetown University Law Center (expected May 2024); B.A., Knox College (2017). © 2022,

Abigail A. Kunkler. I’d like to thank my husband, Kyle Kunkler, for his support and critique.

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