Supervising Discrimination: Reflections of the Interstate Commerce Act in the Broadband Debate

Non

Brief of Amici Curiae Fred T. Korematsu Center for Law and Equality, Asian Bar Association of Washington, South Asian Bar Association of Washington, and Washington Women Lawyers

Civil Rights Amicus Brief Projec

**Towards Action and In Pursuit of Scofflaws: Shifting the Framework of Pandemic Public Health Punishment from Theory to Pragmatism**

The COVID-19 pandemic sparked a debate over whether the government should implement public health interventions like mask mandates and whether public health scofflaws should be punished. The result was a split largely across political lines; “permissive” jurisdictions promoted ideas of individual freedom and condemnation of government-imposed punishment, while “restrictive” jurisdictions implemented a range of punishments attached to mask mandates. This political battle became one of stagnant theories and essentially fused considerations of public health and legal punishment. Bracketing political concerns, what philosophical theories fueled this divide? While public health generally employs a utilitarian framework limited by deontic constraints, permissive jurisdictions exuded a purer libertarian deontology, and restrictive jurisdictions exhibited a retribution-laced utilitarianism. Neither is sufficient to guide public health punishment during a pandemic based on their reliance on too pure a theory. Instead, permissive jurisdictions promoted government inaction, which is simply in contravention of public health principles during an emergency, and restrictive jurisdictions used overly harsh punishments that threatened equity. What is needed is pragmatic reconciliation: the decision-making framework guiding public health punishment during a pandemic must recognize the exigency of the crisis and shift the balance of values (like emergency medicine) to prioritize population health and equity. Lawmakers utilizing this more grounded approach, which draws on foreign examples, will deliver a more practical public health response that delivers fairer outcomes, protects individual liberties, and reduces overall suffering

Network Equality

One of the clear goals of the federal Communications Act is to ensure that all Americans have reasonably comparable access to the Internet without respect to whom or where they are. Yet the main focus of policymakers and legal scholars of Internet policy today has been on promoting innovation, a concept that Congress barely invokes in the statute. The flagship regulatory intervention for this approach is “network neutrality,” a rule that forbids Internet providers from blocking or interfering with users’ connections. To the extent that net neutrality addresses the distributional goals of communications law, it posits that openness will foster innovation which, in turn, will draw user interest which, in turn, will induce investment in more and better infrastructure which, in turn, will benefit today’s underserved. This is the trickle down theory of Internet innovation. This Article critiques this approach. While it has its merits, the privileging of innovation in communications policy could exacerbate existing racial, ethnic, and class disparities because the quality of users’ Internet connections refract through those persistent demographic variables. This Article calls for a return to the distributional equality principle at the heart of communications law and policy. The Internet is essential to almost every aspect of our lives. Like electricity a century ago, it is a technology that determines how we work, campaign, exercise, learn, heal, and love. The benefits of a high-quality Internet connection are especially importantindeed more importantfor racial minorities, poor people, and all others who must negotiate structural inequalities in other aspects of their lives in ways that advantaged people do not. Policymakers and scholars accordingly must affirmatively further equality in Internet access, or at least adopt a regulatory approach that seeks above all to ensure equality. The Internet is too indispensable to rely on innovation alone

Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines

Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose. Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic management tactics, they should submit to regulation that bans stealth marketing and reliably verifies the absence of the practice. Finally, search engines\u27 concern about the applications and content disadvantaged by carrier fast-tracking should lead them to provide annotation remedies to indexed sites whose marks have been unfairly occluded by the search process. Fair competition online demands common commercial ethics for both dominant search engines and dominant carriers

Law and the Open Internet

The FCC has issued a new set of Internet access regulations and policies (namely Preserving the Open Internet Broadband Industry Practices, Report and Order, FCC 10-201, rel. Dec. 23, 2010), which would prohibit broadband service providers like AT&T or Comcast from discriminating against unaffiliated content providers. The FCC\u27s proceedings, and the network neutrality debate, concentrate on two economic questions: (1) whether to broadband service providers can or will steer traffic to affiliated content limiting consumer access, and (2) how to preserve the Internet\u27s capacity for creativity and innovation. Yet despite the prominence of economics in the debate, economic theory cannot answer these questions. The debate also misapplies normative, legal concepts of discrimination and equal treatment onto Internet traffic management engineering. These concepts worked in a circuit switched telephone network in which equality can exist at switch points, but make little sense in the packet-switched Internet in which equality of outcomes of Internet experience is what matters. With its narrow focus, the debate has also missed the fact that actual Internet disputes, such as the BitTorrent-Comcast Order, involve many legal concerns, such as privacy, that have little to do with discrimination as such. We, therefore, argue for a bottom up approach to regulation, analogous to fair use in copyright law, with case specific adjudications creating a common law of acceptable network practice

Internet Architecture and Disability

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach for fully facilitating Internet accessibility. The prevailing doctrinal approach to Internet accessibility seeks to treat websites as metaphorical “places” subject to Title III of the Americans with Disabilities Act (ADA), which requires places of public accommodations to be accessible to people with disabilities. While this place-centric approach to Title III has succeeded to a significant degree in making websites accessible over the last two decades, large swaths of the Internet—more broadly construed to include Internet technologies beyond websites—remain inaccessible to millions of people with a variety of disabilities. As limitations of a place-based approach to Title III become clearer, a new framework for disability law is needed in an increasingly intermediated Internet. Leveraging the Internet-law literature on perspectives, this article recognizes the place-centric approach to Title III as normatively and doctrinally “internal,” in the terminology of Internet-law scholars. It offers a framework for supplementing this internal approach with an external approach that contemplates the layered architecture of the Internet, including its constituent content, web and non-web applications, access networks operated by Internet service providers, and devices and the role of disability and other bodies of law, particularly including telecommunications law and attendant policy issues, such as net neutrality, in making them accessible