In the battle for net neutrality, the A2J community is notably quiet

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Jason Tashea

Jason Tashea

The battle over net neutrality is opening new fronts.

Just a few weeks ago, the U.S. Department of Justice sued California to stop its new net neutrality law from going into effect.

Governors in six states have signed executive orders; and four state legislatures, including California, have enacted net neutrality rules or legislation ever since the Federal Communications Commission repealed the federal rules in December 2017. The repeal itself led to 23 state attorneys general suing the FCC.

Meanwhile, 30 total states have seen legislation introduced on the topic, according to the National Conference of State Legislatures.

This national debate has engaged political, corporate and social interests on all sides of the issue. However, one group has been noticeably low-key: the access-to-justice community.

With government agencies, legal aid providers and new ventures relying more heavily on the internet to improve access to courts, legal information and services, it would seem that net neutrality would be a prime issue for them.

Yet, after parsing old press releases, blog posts and surveying more than two dozen organizations, companies, email discussion lists and access-to-justice experts, it’s clear that the community has largely sat out the fight over net neutrality. This seems to be for two reasons: a lack of concern over the issue or because the topic simply isn’t discussed.

As the battle over net neutrality expands, the A2J community needs to be more engaged on this issue. Sitting this out has to potential to make existing access problems worse.

Originally passed in 2015 and upheld by the U.S. Court of Appeals for the D.C. Circuit in 2016, the previous federal rules required that internet service providers like AT&T, Comcast and Verizon treat all web traffic equally. This meant that, for example, providers could not “throttle” or change the speed with which a person accesses a website. The repeal allows ISPs to block or slow some online traffic. In other cases, the provider can negotiate with a website for “fast lanes” to users.

This is happening at a time when American access to legal services is at an all-time low. A June 2017 report by the Legal Services Corp. found that “86 percent of the civil legal problems reported by low-income Americans received inadequate or no legal help” in the past year. Referred to as “the access to justice gap,” many organizations and companies have been working to ameliorate this problem by providing better legal services and information online. According to spokesman Carl Rauscher, the LSC does not have a position on net neutrality.

Even so, when the vote to repeal net neutrality occurred, the American Association of Law Libraries and Avvo were some of the few in the A2J community to raise their voices.

In an editor’s note on AvvoStories, the company said net neutrality is “integral” to their business of connecting people to legal help.

Similarly, the AALL wrote that: “Without net neutrality, law libraries, whose crucial mission relies on the ability to provide users with equitable access to up-to-date online legal information, may not be able to pay the fees for preferred access. These users are not just attorneys but researchers, self-represented litigants, students and small-business owners. Without net neutrality, ISPs will have the ability to stifle innovation and suppress free expression.”

Through the ABA Journal’s informal email survey, only the Florida Justice Technology Center, Illinois Legal Aid Online and the Law School Admission Council stated that they affirmatively support net neutrality rules. Of the few companies that responded, none had a position. The ABA itself and its Section of Science & Technology Law do not have a position, according to ABA media relations.

Some believe the lack of concern over net neutrality’s impact on access to justice may be justified.

Pieter Gunst, CEO of legal services platform, says he isn’t worried because traffic to legal websites is relatively low. By comparison, he expects high-demand, high-volume websites like YouTube to pay the price if and when ISPs begin to flex their new ability. Other experts agreed with this assessment.

However, as law firms and access-to-justice organizations increase their use of videoconferencing and online dispute resolution, which uses more bandwidth, ISPs could see more opportunities to interrupt access and impose fees.

But it’s not just a civil legal issue. Ashley Krenelka Chase, associate director of the law library at Stetson University College of Law in Florida, recently wrote a law review article saying that the end of net neutrality could impact criminal defense, especially for those already imprisoned.

“The move to online legal research presents difficult issues in light of the recent demise of net neutrality: if meaningful and speedy access to the internet becomes dependent upon being able to afford an internet ‘fast lane,’ internet users will be divided into the haves and the have-nots,” she wrote, “and criminal defendants will surely fall into the latter category, rendering their access to justice completely nonexistent.”

Since the ISPs have not yet used their new powers, it is impossible to know what the real-world impact will be. However, it runs the real possibility of exacerbating an existing connectivity problem.

According to a 2018 PEW Research Center fact sheet, rural America has seen a small decline in internet use since 2016, while urban areas saw an increase. There is a 14 percentage-point gap in broadband access between urban and rural America.

The divide is also stark on class lines. The same report found only 45 percent of those making less than $30,000 a year have broadband internet at home. That number drops to 24 percent for those without a high school diploma. By comparison, 87 percent of those that make over $75,000 a year have broadband access. There is also a 25 percentage point spread between white (72 percent), black (57 percent) and Hispanic (47 percent) people’s access to at-home broadband.

At the same time, the FCC’s proposed rollback of Lifeline, a subsidy program to help increase access to broadband internet, has the potential to worsen access to online legal information and services for low-income and rural communities.

“Obviously, access is already an issue among the poor and disadvantaged; the reversal of net neutrality rules simply compounds this problem,” says Joyce Raby, executive director of the FJTC, “and given that this population also faces such an overwhelming barrier to civil justice remedies, this kind of limited access makes it even more difficult to deliver the services and information they so desperately need.”

As Raby notes, the access-to-justice problem is a tangled ecosystem that touches on technology, funding, politics and other issues. Are there bigger issues than net neutrality stifling access to justice and legal information? Undoubtedly, yes. However, because of the internet’s growing role in legal services, net neutrality is firmly a part of this ecosystem.

This means that the absence of net neutrality is a potentially, increasingly existential issue for those looking to bridge the access-to-justice gap. With so many Americans unable to access legal services already, this is not an issue from which the legal community can disconnect.

Jason Tashea is the author of the Law Scribbler column and a legal affairs writer for the ABA Journal. Follow him on Twitter @LawScribbler.

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