The Repeal of Net Neutrality: Does it Violate Title II of the Civil Rights Act of 1964?

• Author: Jackson, Katrina

TABLE OF CONTENTS I. INTRODUCTION 147 II. BACKGROUND 150 A. Past Net Neutrality Principles 150 B. Current Net Neutrality Rules 152 C. Title I versus Title II under the Communications Act of 1934 153 III. THE REPEAL OF NET NEUTRALITY AND ITS DISPROPORTIONATE IMPACTS 156 A. An Increase in Online News Consumption 156 B. African Americans & Hispanics' Use of the Internet. 157 C. The Likelihood of a Cable Packaged Internet 159 IV. PLACES OF PUBLIC ACCOMMODATION UNDER FEDERAL CIVIL RIGHTS LAWS 161 A. The Civil Rights Act of 1964 161 B. The Americans with Disabilities Act 162 C. A Website as a Place of Public Accommodation 163 1. Circuits Recognizing ADA Protections Beyond Physical Places 164 2. Circuits Requiring a Physical Connection 166 V. EXPANDING THE DEFINITION OF A PLACE OF PUBLIC ACCOMMODATION VI. ISPS ENABLED DISCRIMINATORY PRACTICES VIOLATE TITLE II OF THE CIVIL RIGHTS ACT 169 A. Title II Disparate Impact Claims 169 B. A Title II Violation under the Civil Rights Act of 1964 170 VII. CONCLUSION 173 I. INTRODUCTION

On the evening of December 1, 1955, police forcibly removed a young woman from a local bus in Montgomery, Alabama, and arrested her when she refused to give up her seat for a White passenger. (1) At the time, Alabama law required African Americans to sit in the back of busses and relinquish their seats to White passengers if a bus became full. (2) Alabama's discriminatory state law denied Rosa Parks the full and equal enjoyment of Montgomery's local bus system. (3) Two years later, on September 4, 1957, law enforcement prohibited nine Black students from attending an all-White public high school in Little Rock, Arkansas. (4) Upon entering the school, Arkansas' National Guard blocked the nine Black students from entering the school, pursuant to Governor Orval Faubus' orders. (5) Arkansas' unwillingness to desegregate its public school system denied the Little Rock Nine the full and equal enjoyment of the state's public educational system. (6) Following this incident, on February 1, 1960, a diner denied four Black college students service at a local lunch counter in Greensboro, North Carolina. (7) The diner's lunch counter policy only permitted White customers to dine. (8) But fighting for equality, the young Black college students refused to leave despite the lunch counter's policy. (9) Stemming from intolerance and bigotry, North Carolina's diner denied the Greensboro Four the full and equal enjoyment of service at their local diner. (10) During the 1950s and early 1960s, discriminatory laws and practices continually denied the full and equal enjoyment of many public establishments to African Americans. (11) However, such discriminatory practices fueled the Civil Rights Movement, a movement that fought to ensure equality for African-Americans. (12)

On July 2, 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 ("Civil Rights Act") into law, which aimed to eliminate discriminatory practices in places of public accommodation, such as hotels, restaurants, and local bus systems. (13) The Civil Rights Act protected an individual's right to fully and equally enjoy places of public establishments regardless of one's race or ethnicity. (14)

While discriminatory practices in places of public accommodation during the 1950s and 60s prompted the Civil Rights Act, there are similar issues today. (15) As America continues to progress socially, economically, and politically, places of public accommodation should not be confined to physical walls. In today's society, the Internet should be classified as a place of public accommodation. The Internet is an integral part of all of our lives and it will continue to revolutionize society for the better. (16) Thus, the law should guarantee all persons a right to fully and equally enjoy the Internet and its vast economic benefits.

Moreover, the Internet is one of the most common tools Americans use to receive information. (17) Due to rapid developments in social media and the sharing of digital news, 50% of all Internet users report that they receive breaking news via social media applications and Internet web browsers. (18) Over the years, Americans have become accustomed to freely receiving and imparting information and ideas via the Internet. (19) But this free exchange of material and knowledge is in jeopardy because, on October 1, 2019, the United States Circuit Court of Appeals for the District of Columbia ("D.C. Circuit") upheld the FCC'S repeal of net neutrality. (20)

Net neutrality incorporates the idea that one's ability to access the Internet freely and equally is a human right. (21) Net neutrality is the principle that Internet service providers (ISPs), such as Comcast Xfinity, Verizon Fios, or AT&T, must treat all Internet content and Internet data equally, regardless of the source.(22) However, the D.C. Circuit affirmed the FCC'S repeal of net neutrality. (23) ISPs may now engage in discriminatory practices including blocking, throttling, and paid prioritization. Such discriminatory practices could result in an Internet that separates users by socioeconomic status or race. (25)

For example, individuals or private companies willing to pay ISPS at a higher rate may receive a faster, favored service, whereas individuals unwilling or unable to pay ISPS a competitive market price may find it much harder to compete and may receive slower Internet access. (26) Moreover, ISPS may begin to offer "bundled" Internet packages, similar to the market of television packages. (27) ISPS, like other private companies, are motivated by profits. (28) ISPS now have the market power as gatekeepers to impose "both technical and economic harms as part of a business negotiation, or favor their own higher-level services." (29) Not only can ISPS prevent a consumer's right to access lawful content, ISPS can degrade and slow down a consumer's network service. (30) The repeal of net neutrality and such harms associated with it could lead to a cable packaged Internet, jeopardizing the order of an open Internet. And because the Internet touches every facet of American lives, it should remain equally accessible to all.

The benefits of an open Internet are undisputed, including steady development in commerce, innovation, information, and free flowing speech. (31) But cable packaged Internet substantially harms such necessary benefits, which could severely and disproportionally impact African Americans and Hispanics. (32) African Americans and Hispanics, in comparison to Whites, rely substantially more on an open Internet to stay abreast of local and global news and are least likely to be able to afford an Internet package that offers a diverse set of unblocked, readily available content. (33) To prevent such a distorted outcome, the idea of Internet openness must be protected.

Similar to the way Rosa Parks, the Little Rock Nine, and the Greensboro Four were found to be entitled to full and equal enjoyment of the various places of public accommodations, African Americans, Hispanics, and more generally people of color should be entitled to the full and equal enjoyment of the Internet.

This Note will establish that the repeal of net neutrality will have disparate effects on people of color because ISPs can engage in blocking, throttling, and paid prioritization of an individual's Internet access, resulting in unlawful disparate impact prohibited by Title II of Civil Rights Act of 1964. Part II will establish the legal and factual background of the FCC and its net neutrality proceedings. Part III will illustrate how the FCC'S repeal of net neutrality enables ISPs to engage in conduct that disparately impacts people of color. Part IV will explain what a place of public accommodation means under federal civil right law. Part V will establish why the Internet should be considered a place of public accommodation under Title II of the Civil Rights Act. And lastly, Part VI will demonstrate how Title II of the Civil Rights Act prohibits disparate impact resulting from the FCC'S repeal of net neutrality.

2. BACKGROUND

   1. Past Net Neutrality Principles

      Net neutrality, a term first coined in 2003, has governed many of the FCC'S policy positions and regulatory frameworks. (34) Even before the term's recognition, FCC Chairman William Kennard in 2000 identified the importance of an open Internet, stating: "Consumers--the people who actually drive a market--deserve and will demand an open platform. They are used to openness in the dial-up world, and they will not want to be denied it in the broadband environment." (35) Four years later, FCC Chairman Michael Powell established the "Four Internet Freedoms" ("The Freedoms"), which encouraged ISPs to follow and promote Internet openness. (36) The Freedoms included the freedom to access content, run applications, attach devices, and obtain service plan information. (37)

      The Freedoms illustrate the FCC'S long-standing efforts in encouraging ISPs to allow their customers to freely impart and receive information via the Internet. Moreover, in 2010, the FCC officially adopted an Open Internet Order ("2010 Order"), which incorporated principles of net neutrality. (38) In an effort to "preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression," the FCC adopted three basic rules in the 2010 Order. (39) The rules required transparency by ISPs about their network practices and prohibited ISPs from blocking or unreasonably discriminating against lawful content in order to "empower and protect consumers and innovators while helping ensure that the Internet continues to flourish." (40)

      The transparency rule required ISPs to disclose their network management practices and the conditions of all their services to their customers. (41) Secondly, the blocking ban prevented ISPs from preventing customers from viewing lawful websites. (42) And lastly, the FCC'S no...