Neutralizing Access to Justice: Criminal Defendants' Access to Justice in a Net Neutrality Information World.

Author:Chase, Ashley Krenelka
 
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TABLE OF CONTENTS ABSTRACT 323 INTRODUCTION 325 I. NET NEUTRALITY 329 A. Background 399 B. The Court Battle: Verizon v. FCC 332 C. The FCC Takes a Stand: New Open Internet Protections 335 D. Raising the Red Flag: ISPs Revolt Against the "New " Open Internet 337 E. Today's FCC and the Restoring Internet Freedom Order 338 F. The Reality of Internet "Deregulation" 340 G. The Future of the Internet in the United States 342 II. ACCESS TO JUSTICE AND LIBRARY HIERARCHIES 344 A. A History of Access Issues: How Bounds and Casey Impacted the Right to Information for Prisoners 345 1. Bounds v. Smith 346 2. Lewis v. Casey 346 B. Today's Criminal Defendants' Access to Legal Information 348 1. Meaningful Access to Information and the Law Library Hierarchy 350 a. Academic Law Libraries 352 b. Government Law Libraries 355 c. Appointed Counsel, Law Firms, and Law Firm Libraries 356 d. Public Libraries 357 e. Prison Libraries 358 III. IMPACT OF NET NEUTRALITY ON ACCESS TO JUSTICE 361 A. Libraries' Ability to Afford Access to Materials at Useful Speeds 361 B. Effect on the Practicing Bar 363 1. Public Defenders 363 2. Private Counsel 364 C. Costs to Society 366 CONCLUSION 367 INTRODUCTION

The regulation of the Internet--in particular, net neutrality (1)--and access to justice for criminal defendants are increasingly intertwined. (2) Where ten years ago those two phrases would not have been used in the same sentence, it has become nearly impossible to talk about access to justice today without considering net neutrality. Net neutrality is, simply put, the idea that no information on the Internet is more or less important than any other information on the Internet and that users should be able to access all information the same way and at the same speeds. (3) The debate surrounding net neutrality "arose in response to fears that Internet service providers would begin to restrict and/or tier access, which was perceived as a threat both to the free and open Internet and to equal access to information." (4) The current net neutrality debate remains largely centralized around two issues: monopolization and tiering (or Internet "fast lanes"). These issues are typically discussed in terms of large-scale, commercial websites, such as Netflix, Google, and Amazon, and not in terms of justice.

Because of years of heated discussions about net neutrality in the public sector, the Federal Communications Commission ("FCC") has been bombarded with comments on these issues. (5) Not since Janet Jackson's nipple appeared at the Super Bowl has the FCC received so many comments on an issue that relates to the public. (6) In Verizon v. FCC, the U.S. Court of Appeals for the D.C. Circuit held that the FCC's regulatory power over common carriers does not apply to Internet service providers ("ISPs"). (7) This opinion effectively handed control of the Internet over to major nationwide ISPs, such as Verizon, AT&T, and Comcast, thereby eviscerating the commitment to a free and open Internet once claimed by the FCC. (8) Professor Tim Wu said that this decision "takes the Internet into completely uncharted territory." (9) Since then, new rules have been promulgated by the FCC, upheld by the courts, then subsequently retracted by the FCC, leaving net neutrality mired in uncertainty. This uncertainty may spell certain disaster for the general public, for whom Internet use is a daily part of life. Not only could Internet services require users to pay separately for messaging, social media, or other features, but consumers could also find themselves using an Internet with a fast lane that is "occupied by big internet and media companies, as well as affluent households," while the rest of the world navigates the Internet with a slow connection or no access to certain websites. (10) For those navigating the intricacies of the criminal justice system--who need access to the Internet to perform meaningful legal research --this prioritization will impact access to the courts and access to justice."

But when we discuss the impact of a non-neutral Internet on the criminal justice system, who is being impacted most? Indigent defense is a significant problem, with rising costs, (12) increased caseloads, (13) and government failure to meet the increased needs. (14) According to statistics kept on the number of individuals in American prisons, over 2.3 million people are currently incarcerated in the United States, (15) and many more are currently being prosecuted in state and federal courts. Accused individuals around the country are subjected to three scenarios: overworked and underpaid public defenders, private attorneys who--if they can afford them at all--might charge exorbitant fees, or self-representation--the worst fate of all. (16) Coupled with these growing demands is the need for each criminal defendant to have solid research to support his or her defense. This research is most efficiently completed using online legal resources in attorneys' offices, libraries, or the comfort of one's home. (17)

The lack of hard data on the number of people currently represented by public defenders, private attorneys, or pro se makes it impossible to address just how broadly these new net neutrality rules may affect millions of Americans. (18) One thing is for certain: In an age where more people than ever before are plodding through the criminal justice system and need easily accessible legal information, the demise of net neutrality threatens to interfere with access to justice and diminishes the ability of those operating within the system to provide well-researched advice.

In Part I, this Article will examine the legislation, regulations, and cases that brought net neutrality to the attention of the American public. Next, it will consider how net neutrality and access to information are related, particularly in the criminal justice system. Part II will discuss methods of access to justice and legal information by those in the criminal system. It will detail United States Supreme Court decisions that have impacted criminal defendants, the hierarchy of libraries criminal defendants and their attorneys use to seek justice and access to the courts, and the cost of legal resources for those attorneys who represent criminal defendants in the United States. Part III will analyze how the demise of net neutrality will directly harm the millions of Americans who are currently impacted by the criminal justice system--cither as a defendant or as a family member or friend of one--and what can be done to ensure that their access to justice remains intact.

  1. NET NEUTRALITY

    1. Background

      A neutral network--what people mean when they refer to "net neutrality" --is a network in which no single application is favored over another. (19) A non-neutral Internet, for example, would allow Yahoo! to pay for priority over Google or for Netflix to pay for faster service than an email provider. Net neutrality has various definitions, ranging from absolute nondiscrimination (20) to limited discrimination without tiering based on quality of service. (21) When the general population of the United States thinks of net neutrality and the need to regulate the Internet, the images that come to their minds range from the "Great Firewall of China" to an Internet "dark web" crawling with pedophiles, free from any sense of order or decency. (22) Regardless of the public's vision of what net neutrality means, most agree that a neutral Internet would require that "owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network[]... and should not be able to discriminate against content provider access to that network." (23) With a neutral Internet, users pay a single fee to access the Internet; without net neutrality, the network owners are free to "slice and dice the Internet ecology," so Internet users in poor communities may experience connections similar to dial-up speeds of the past, while millionaires in large cities may access the Internet at lightning-fast speeds to which we have all become accustomed. (24) Essentially, a non-neutral Internet could be split between the haves and the have-nots.

      In the United States, issues related to net neutrality and Internet access are hashed out in many arenas--on the floor of Congress, at the FCC, and in courtrooms all over the country. Initially, a series of orders adopted by the FCC in the 1970s were all that was available to deal with telecommunications in the United States. (25) These orders, known collectively as "The Computer Inquiries," (26) sought to govern the relationships between the "common carriers," who were traditionally regulated by the FCC and the emerging computer and data processing industries. (27) These decisions separated network infrastructure from the market for information services and imposed a set of broad nondiscrimination rules for network access that prevented anti-competitive behavior. (28)

      Congress granted the FCC the power to regulate interstate and international communications by radio, television, satellite, wire, and cable in all fifty states, the District of Columbia, and the U.S. territories. (29) The Communications Act of 1934 ("the 1934 Act") allows the FCC to regulate under two broad areas: Title I governs telecommunications services under the Commerce Clause, while Title II applies more stringent regulations to broadcast services, including radio and television. (30) Thirty-four years later, Congress passed the Telecommunications Act of 1996 ("the 1996 Act") in which it defined two classes of services. (31) First, the 1996 Act defined "information services," which offer the "capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and include[] electronic publishing[] but do[] not include any use of any such capability for the management, control, or...

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