“The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions.” From that text, Article XVII of the New York constitution, the New York Supreme Court declared a constitutional right to shelter in Callahan v. Carey. Millions of New Yorkers have sought and received shelter because of the consent decree that resulted from that case. The right to shelter puts an affirmative obligation on the government to solve one part of a much larger problem. Homelessness still exists in New York, and some argue the mandate does more harm than good when it comes to truly reducing homeless. However, it nevertheless diminishes the short-term ramifications of being with a place to call home. Imagine what a right to Zoom could do to reduce the digital divide.
Positive rights, such as the right to shelter mandate, exist in other state constitutions. They all share a common focus on providing the essential elements of a good life. North Dakota’s constitution requires the state Legislature to “provide a uniform system of free public schools throughout the state.” The respective constitutions of Alaska and Hawaii specify that “the State shall provide for the protection and promotion of the public health.” Modern courts should interpret these positive rights provisions to compel states to provide free, speedy internet access. Outside of food, water and shelter, there’s no greater basic need in the era of remote-everything than the internet.
The right to Zoom would require states to do more than just talk a good game when it comes to closing the digital divide. Just as the right to shelter mandate in New York has forced New York City and the state to add hundreds of beds to shelter homes, the right to Zoom would compel state governments to proactively determine if every qualifying individual can access a meaningful internet connection, as opposed to the low-upload and download speed plans commonly offered through low-cost internet options. For the right to Zoom to be fulfilled, the connection — a use case that has become table stakes when it comes to participating in our digital society — would need to have enough bandwidth so that all users could use Zoom, Google Hangouts, Skype, etc.
Some may argue that the billions of dollars being allocated toward the digital divide as a result of the infrastructure bill will make such a right unnecessary. They’re wrong. Those funds will grease the wheels of an internet infrastructure that’s been on a decadeslong course away from ensuring universal access. More than $14 billion, for instance, will go toward subsidies for families to purchase broadband from their local internet service provider, or ISP. These subsidies, coined the Affordable Connectivity Program, or ACP, are extensions of the Emergency Broadband Benefit, or EBB, created during the pandemic.
Yet, just like the funds allocated toward the EBB, these billions will have a limited impact. For one, the infrastructure bill will continue a program that’s failed. As of October, only 16.4% of eligible Americans participated in EBB, according to EducationSuperHighway, or ESH. Rather than try funding a new strategy, the infrastructure bill doubled down on the EBB’s approach and diminished its likely impact by cutting the already-insufficient subsidy from $50 per month to $30 for households not recognized as residing on qualifying tribal lands.
The communities meant to benefit from the EBB, and now, the ACP, deserve a better approach to closing the digital divide. Each day that communities of color and low-income communities who are disproportionately left without sufficient internet access cannot affordably get online is a day that the internet-affluent see their advantages compound: This latter group can more easily find jobs, apply to scholarships and access telehealth appointments. Rather than reinvesting in programs such as EBB that have fallen short of expectations, the government ought to insist on solutions that leave no doubt as to their efficacy.
Another drawback to continuing to fund tired solutions based on the status quo will reinforce an internet marketplace that is tailored toward the biggest ISP. One draft of the infrastructure bill contemplated directing funds toward smaller, locally owned and operated ISPs. The big ISPs made sure that piece was cut.
In a right to Zoom world, every source of the internet would have to be inventoried, supported and leveraged. At least 18 million households across the United States lack internet access solely because they cannot afford it, based on ESH’s count. Governments required to fulfill the right to Zoom would have to find all the ways that can directly cover internet costs for those without a meaningful connection. That would likely require fostering more competition between ISPs and funding those providers capable of delivering the highest speed internet at the lowest possible cost.
The right to Zoom would not solve all of the problems associated with the digital divide. It may, for instance, result in less investment in big projects such as building out fiber in order to cover the immediate internet costs of individuals today. That’s a tradeoff we can and should make. We cannot go on for another year in which 47 million Americans, the residents of those 18 million households, are left offline simply because they are short of funds.