The Individual as Both Capable and Needy: Internet Access Reimagined Under Martha Nussbaum's Capability Approach to Human Development.

• Author: Reiner, Jamie

TABLE OF CONTENTS I. Introduction 349 II. Background 350 A. Deficiencies and Reliance: Internet Shortcomings 350 1. Shortcomings and Reliance Brought on by the Pandemic 350 2. General Reliability: Interpersonal and Political Relationships 351 B. Government Recognition of Internet Shortcomings and Import 353 1. Federal Action 354 2. Community Gap Filling: Furthering Access Through Creativity 354 C. Internet Access as a Human Right: The Approach of the United Nations 359 D. Martha Nussbaum's Capability Theory 360 1. Introduction to Capability Theory 360 2. Capabilities, Not Functions: On Their Difference and Why it Matters 362 3. Tripartite Form of Capabilities 363 III. Analysis 365 A. Application 366 B. Consequences of Adhering to Nussbaum's Capability Approach 368 1. Municipal Broadband and Beyond 368 2. Federal Asset Deployment 369 IV. Conclusion 370 I. INTRODUCTION

"They sit in hot cars, some switching the air conditioning on and off to save fuel. Some just sit on the asphalt using portable TV trays as desks, trying to find shade while staying tethered to the signal." (1) Without reliable Internet access at home, school children like 8-year-old Gabriel Alston struggled to find adequate Wi-Fi to attend remote classes during the throes of the COVID-19 pandemic: "I hate it... I can't hear anything on the computer, but when we're in real life, I can hear everyone." (2)

Among the diverse structural deficiencies exposed in the United States through the strain and horror of the COVID-19 crisis, America's lack of reliable and fast Internet access finds itself on the long list. And the numbers support the anecdotes. The Federal Communications Commission ("FCC") approximates that more than 21 million people in the United States do not have reliable Internet connection, and the distribution is not equal. (3) The households without reliable Internet access most often are those that cannot afford it, and thus the children in those homes are left to struggle to find an Internet connection to attend class and complete assignments. (4) This particular manifestation is just one example of how the lack of fast, reliable Internet can hold people back from equal enjoyment, participation, and opportunity in society.

Representative John Lewis encapsulated the current digital chasm in a simple yet prophetic way: "... the availability to have access to the Internet... is the civil rights issue of the 21st century." (5) How do we understand Internet access? How should our social policies be structured to increase it? What is the proper role of government facilitation? At bottom, this Note seeks to answer those questions through an application of an established theoretical framework to a unique context.

Applying American philosopher Martha Nussbaum's Capability Approach to Internet access would recognize a positive duty on states to secure Internet access as a necessary background condition to providing individuals with the choices and opportunities necessary to decide how to lead their lives. Once accepted, this recognition is helpful for a variety of policy questions surrounding attempts to distill what the proper extent of government involvement should be in securing Internet access. Marshalling creativity and innovation from individuals within communities, resulting in broader access, should be the ultimate goal of such policy planning.

Section II lays out four discrete background sections. Subsection A puts forward examples of the deficiencies in the current digital landscape and our increased reliance on Internet access that was amplified by the COVID-19 pandemic, as well as examples of reliance that predated the pandemic. Subsection B explains some of the ways government at the federal, state, and local levels have tried to dampen the digital lacuna. Subsection C explains how the United Nations has taken a human rights approach to the challenge of Internet access rights but argues that this approach does not go far enough towards establishing a positive duty on the State. Lastly, Subsection D lays out the core precepts of Martha Nussbaum's Capability Approach to human development, providing its relevant details and why the nuance matters.

Section III has two sections. Subsection A applies Nussbaum's established theory to the topic of Internet access and suggests that Internet access is required for several of Nussbaum's Central Capabilities. The upshot of this application leads the reader to the conclusion that the government has a positive obligation to promote Internet access. Subsection B then illustrates the consequences of this conclusion by discussing two ways the duty might be implemented by policymakers.

2. BACKGROUND

   1. Deficiencies and Reliance: Internet Shortcomings

      To appreciate the importance of Internet access, one might start with noting the effects of its absence. The "Homework Gap" and the increase in telehealth use illustrate both the lack of equal access and the need for Internet across all sections of society. (6) Further, beyond the current COVID-19 environment, it is important to appreciate the Internet as a general prerequisite to engaging both in our interpersonal relationships and with our larger political environment.

      1. Shortcomings and Reliance Brought on by the Pandemic

         The "digital divide" is more than a catchy phrase. It is real, and it manifests itself in a myriad of ways throughout different cross-sections of society. (7) One concerning manifestation is the "Homework Gap" which refers to the lacuna between students who have sufficient Internet access at home and those that do not. (8) The challenges faced by students who lack reliable Internet access have been exacerbated in the COVID-19 environment as students are dependent on reliable Internet to attend class and complete their assignments. (9)

         During the beginning of the COVID-19 pandemic, 125,000 schools went remote. (10) According to data collected by Pew Research Center's April 2020 survey, "one in five of the surveyed parents said it was at least somewhat likely their children would not be able to complete their schoolwork because they did not have access to a computer at home or would have to use public Wi-Fi to finish their schoolwork." (11) The divide falls on socioeconomic lines as 59% of parents with lower incomes said it's likely their homebound children would face at least one digital obstacle to doing their schoolwork. (12)

         The reliance on Internet to continue schooling is just one representation of the strain COVID-19 places on the need for Internet connectivity. The meteoric increase in the use of telehealth represents an additional illustration. As virtual appointments become the new normal for medical care, communities lacking Internet access and digital literacy face steep obstacles to receiving quality care. (13) "Among American adults [over] 65 years old... most likely to need chronic disease management, only 55%-60% own a smartphone or have home broadband access." (14) Without reliable Internet access, people are hindered in their ability to go to school and complete our assignments, receive medical care, and even show up for work. (15) In short, those that lack reliable and affordable Internet access often find themselves left behind.

      2. General Reliability: Interpersonal and Political Relationships

         While the COVID-19 pandemic brought our reliance on Internet access to a critical point, the prominence of the Internet and our dependance on it is not unique to the COVID-19 era. Since its inception, Internet connection has been an integral way to communicate and coordinate our lives with one another. This Note will flesh out two forms of reliance: companionship, the way we form and cultivate our relationships with one another; and political involvement, the manner in which we come to learn about our political climate. That is to say, without Internet access, we are unable to fully decide how we foster and grow our social interactions and relationships, nor are we are able to fully participate in the political process.

         The advent of the Internet ushered in a new realization: affiliation with one another can transcend physical space. (16) Since the Internet's proliferation, relationships have been created, fostered, and endured online as "the Internet provides the means for inexpensive and convenient communication... it increases communication among friends and family, especially contact with those who are far away." (17) A ripe example can be seen through the trend in finding one's life partner through Internet platforms. (18) According to one study from Stanford University, "Internet meeting is displacing the roles that family and friends once played in bringing couples together." (19) The study found that there has been a consistent increase in romantic relationships beginning online, and the trend only continues to increase as technology and smartphone use maintains a dominant presence in our lives. (20) Further data supports what, in retrospect, seems patently obvious:

         Internet use provides online Americans a path to resources, such as access to people who may have the right information to help deal with a health or medical issue or to confront a financial issue.... The result is that people not only socialize online, but they also incorporate the Internet into seeking information, exchanging advice, and making decisions. (21) Internet access has replaced our physical communities as the nexus for communication and personal connection. Without the Internet, we are stymied in the quantity, quality and richness of the relationships we are capable of having with one another. Without reliable Internet access, we are limited in the communities we are able to create and the people that we may meet.

         A further facet of our reliance on Internet access comes in the form of political participation. Widespread use of technology is now how we get information about our elected officials, leading to a more informed...