Unveiled on March 16, 2010, the FCC’s National Broadband Plan outlines an ambitious vision to make broadband internet speed ubiquitous and affordable in the United States. As reported in the New York Times:

“Fewer than 27 out of every 100 Americans have broadband service, compared with 33 in South Korea and 38 in the Netherlands. The average advertised download speed is 8 megabits per second; in France, it is 51. And according to a study by the F.C.C., the average download in the United States occurs at about half the advertised speed. Meanwhile, the poor, the elderly and other vulnerable groups remain cut off from broadband technology, and therefore from such things as online government services, medical advice and jobs.”

The plan’s aims, far-reaching in scope, are as follows:

Once most known for its censorship of lurid content in media, the FCC is expanding its scope to making ubiquitous internet access a national priority.

• Goal 1: At least 100 million U.S. homes should have affordable access to actual download speeds of at least 100 megabits per second and actual upload speeds of at least 50 megabits per second.
• Goal 2: The United States should lead the world in mobile innovation, with the fastest and most extensive wireless networks of any nation.
• Goal 3: Every American should have affordable access to robust broadband service, and the means and skills to subscribe if they so choose.
• Goal 4: Every community should have affordable access to at least 1 Gbps broadband service to anchor institutions such as schools, hospitals and government buildings.
• Goal 5: To ensure the safety of Americans, every first responder should have access to a nationwide public safety wireless network.
• Goal 6: To ensure that America leads in the clean energy economy, every American should be able to use broadband to track and manage their real-time energy consumption.

At roughly 7 times the speed of the internet connection I’m using to write this post (provided by my Comcast cable connection), I’m all for universal broadband. But why should it be a right, if it should be?

The Notion of Rights & The Hohfeldian Analytical System

Talk of ‘rights’ is often muddled, given the varied nature of moral history across cultures. Many, including famed philosopher Jeremy Bentham, think the notion of natural rights are nothing more than “rhetorical nonsense — nonsense upon stilts.” The good news for us plebes is that most modern thinkers — and, more practically, legislators — tend to think otherwise.

In considering whether internet access ought to be a right, it’s helpful, I think, to understand the form of rights, which will provide a framework for looking at the issues at stake. Legal theorist Wesley Hohfeld (1879-1918) articulates four elements of rights (which are known as “The Hohfeldian incidents”) that are particularly useful for this exercise: the privilege, the claim, the power, and the immunity.

For a more technical description of these elements, check out the Stanford Enyclopedia of Philosophy, but I’ll attempt to give a quick and dirty explanation of what these terms mean for those who aren’t as familiar with the ‘φ‘ symbol. For those less theoretically-inclined, feel free to skip to the next section.

• The privilege (liberties): You have the right to do something because you have no duty not to do that thing. For example, you have the right to pick up a coin that you find on the ground because you have no duty not to pick it up.
• The claim: You have the right to claim a certain action from someone because s/he has the duty to do that action for you. An employee, for instance, has the right to be paid for her work, because of the duty the employer acknowledged in their contract.
• The power: You have the right to alter your own or another’s Hohfeldian incidents, if an agreed upon set of rules allows it. A boss, for example, can create a new duty or for her employee or lessen her authority over others, because the rules of employer-employee relationships allow it.
• The immunity: You have the right to not have your Hohfeldian incidents altered by another person, within a given set of rules. For example, US citizens have immunity from being forced to practice a religion that the government prescribes.

Broadly speaking, there are a lot of different types of rights, and it’s easier to see how rights can come into conflict when we take a look at their different characteristics.

Some Issues at Stake

Approximately 100 million Americans do not have broadband at home. The FCC aims to change that.

• Education. Both scholars and common sense tell us that internet access is one of the biggest pedagogical boons since the invention of the printing press. Beyond being the vastest free repository of information in the history of humankind, interaction with its content provides users with the skill sets needed to survive and thrive in information-based economies. Parsing through large amounts of data and navigating various conceptual categories are among the many skills frequent internet users acquire. So, if education is a right, then it certainly seems to follow that internet access should also be right–especially given the importance of learning outside the classroom.

• Public Safety & National Security. Since 9/11, the government has failed to create a functional interoperable communication network for first responders to both security threats and natural disasters. The results, as seen during 9/11, can be life-changing. PCMag’s Chloe Albinisius writes: “Police could not warn fire department officials about falling debris. Port Authority police could not tell state police to get out of a building, and so on.” Aside from interoperable communications, ubiquitous internet access would give citizens more immediate, multimedia information about important events from more sources in real-time than other communicative media –  e.g., cable TV, telephone networks.

• Taxation: While most of the National Broadband Plan is supposed to be covered by television spectrum auctions and private investment, some initiatives, such as the aforementioned public safety interoperable network, will come at the cost of additional fees for broadband users. Though FCC spokesman Rob Kenny claims the fee would be less than a dollar, many uber-libertarian types are angered by yet another tax, clamoring for immunity from such a fee.

• Private Enterprise: TV broadcasters are miffed at the thought of lost business opportunities by their auctioned spectrum space, and some telecom companies are worried by the imposition of government standards to increase their delivery speed. The equivalent of online ‘eminent domain,’ auctioning currently unused TV broadcasters’ spectrum is a prime example of sacrificing private interests for the public good.

The issue is complex, to say the least. In my opinion, the educational and national security claims are large enough to warrant internet access as a right. But what do you think? I’d love to hear your thoughts on the comment board below.

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A graphic provided to convey differing opinions on privacy by the The New York Times in its 'Week in Review' Section on February26, 2010.

Contrary to most contemporary intuitions about media treatment of stars like Tiger Woods, the court ruled, as related in an article by MSNBC‘s Bob Sullivan, that:

“…posing for the photographs did not mean Dumas and Menken had surrendered their rights to privacy and dignity, even if they consented to do just that during a heady romantic moment. These rights trumped any commercial property rights the photographer might have claimed, the court said.”

For most Americans, this ruling, along with the recent ruling against three Google executives in Italy for passively allowing ‘privacy-infringing’ videos to be posted on YoutTube, is troubling.

Beyond the need to fine-tune Google’s passive distribution policies for offensive content, this case highlights a deeper ideological divide, which Dumas’ case also exemplified. As The New York Times‘ Adam Liptak writes,

“… it called attention to the profound European commitment to privacy, one that threatens the American conception of free expression and could restrict the flow of information on the Internet to everyone.”

In the  abstract (no, I didn’t read the entire paper) of Yale law professor James Whitman’s paper ‘The Two Western Cultures of Privacy: Dignity versus Liberty,’ Whitman (or, more likely, some editor of the Yale Law Journal) clearly describes the issues and implications at stake:

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic–conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right.

The article (achem…abstract) later argues:

European privacy norms are founded on French and German ideas of “personal honor.” Continental “privacy,” like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the “personal honor” of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism…

Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one’s public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of “personhood.” Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.

For those of you still reading the post after reading through that quote (it might be a bit dry for some), I tend to disagree with Whitman’s rejection of the notion of some universal concept of ‘personhood’, though I also (unsurprisingly) lean toward sympathizing with American ideological and, hence, policy decisions.

The differing opinion lies in what I believe to be a false dichotomy that Whitman presents: between ‘dignity’ and ‘liberty.’ The value of ‘liberty,’ I think, draws its compellent force, like ‘privacy,’ from an intuitive notion of ‘personhood’ or ‘human dignity.’ And so, the dichotomy instead lies between ‘liberty’ and ‘privacy.’

Like most talk of ‘rights,’ however, these discussions are muddled by differing foundational concepts, not to mention differing laws (premised on those differing concepts) across national boundaries.

Nevertheless, in my opinion, we must weigh the value of ‘liberty’ against ‘privacy,’ knowing that that the results will vary by situation. I wouldn’t, for example, value a voyeur’s autonomous choice to spy on someone through a window over the watched person’s desire not to be watched while changing. More broadly, it’s understandable, too, that there should a sliding scale for the threshold of what constitutes tolerable infringements of either value across different cultures and national boundaries.

University of Michigan Internet law professor Susan Crawford also cautions against cagetorical thinking in the aforementioned NYTimes article:

Privacy is a broad enough concept, and Europe and America are varied enough, that it is easy to find counterexamples. Britain, for one, is only slowly moving toward the Continental model.

Something tells me, however, that the ideological divide will continue and deepen as online media continues to proliferate. I wonder how French courts would feel about the sale of copies of of Dumas’ and Mencken’s photos on this NY state-based site.

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