Volume 35

Inconceivable: Impossible Consent and Your Internet Service Provider

by Abigail A. Kunkler

When you pick up the paper (or, more likely, pick out a blog post), it tells you that the COVID-19 pandemic changed every aspect of how we relate to one another. This misses the point. The pandemic has not changed everything—but it has aggravated and stressed resource gaps in the United States. One example is the desperate need for improved Internet access and increased infrastructure. For years, activists and politicians have urged us to recognize internet access as a public utility. These calls are particularly poignant as our activities are forced online. We go to work, school, the bank, the tax preparer, and the courtroom—all from a networked device.

This Note questions the precarious position of our right to privacy in the present world where one cannot realistically opt-out of Internet service without losing access to fundamental services necessary for day-to-day life. Section I gives background information on the function of Internet service providers (ISPs) and the “digital divide” faced by a considerable portion of Americans. Section II critiques the consent component of an ISP’s privacy policy and argues that such policies are, on their face, non-consentable. Section III proposes a new division of the Federal Trade Commission (FTC) which evaluates these policies before they are enacted. Finally, Section IV details how this proposal connects with the ethical obligations of the legal field. These updates are critical not just to consumer rights, but to the ethical obligations (legal and otherwise) of the drafters, evaluators, and enforcers of the contracts themselves. To be perfectly clear: this is intended to be a band-aid solution—wider and more systemic change will be needed.


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