Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
desirable to sellers and buyers alike. Moreover, consumerswithout access to the Internet will miss not merely onlineshopping opportunities, but also access to the mass of sometimesedifying information available on the Web.This problem has at least two related facets: who will haveaccess to technology and what specific means of access may theylegitimately employ? Policymakers have labeled the formerproblem of unequal access to technology the “Digital Divide.”1Indeed, this issue has been with us for so many years that theterm “Digital Divide” has grown in the collective consciousness toa point where it is almost passé. Nevertheless, unequal access toInternet technology will remain a concern in the near future andinequalities may grow for some time rather than shrink. Even ifpolicymakers could solve the problem of unequal opportunity toaccess the Internet, what technology would the formerlydisenfranchised or even the Internet-savvy use? As technologymarches on, the question of who will have access to the bettertechnology, like broadband, arises.While almost everyone is familiar with at least some of theissues the “Digital Divide” raises, fewer may know about an accessdebate currently raging in the United States. That debate focuseson who may link to a Website and how they may do so. In recentmonths, certain popular sites have begun to employ an ancienttort, trespass to chattels, in an attempt to regulate access to theirsites. Depending on how courts finally resolve such claims, theuse of trespass to chattels to regulate access to sites could hamperthe emergence of the Internet as a market that approaches perfectcompetition and promises significant benefits for consumers.The following discussion addresses problems of access. Itdiscusses some parts of the debate over the “Digital Divide” andaccess to broadband technologies. It then reviews some of thecaselaw on access to Websites and proposes an approach toresolving such questions.A. Problems of Access Generally—The Digital DivideCommentators have thoroughly documented the “Digital1. Report of the Digital Opportunity Task Force, Digital Opportunities for All:Meeting the Challenge, at 3 (May 11, 2001), available athttp://www.glocom.ac.jp/dotforce/final/DOTForceReportv50g.pdf.
Divide” both domestically and outside of the United States.2Within the United States, there are dramatic disparities in accessto technology across income levels.3 Geography makes adifference as well: rural Americans are less likely to have access totechnology than their urban counterparts.4 Indeed, less than fivepercent of towns with populations under 10,000 have access tobroadband technology.5 Poor, rural Americans are twenty timesmore likely to be left behind in matters of technology than theirfellow citizens.6 Minorities and the disabled are less likely to owncomputers.7 These disparities persist despite efforts by the publicand private sectors to narrow the gap.8In May 2001, the Digital Opportunity Task Force (DOT Force)released its proposals for bridging the global gap. The G8 heads ofstate had created the DOT Force at the Kyushu-Okinawa summitin July 2000 “in a cooperative effort to identify ways in which thedigital revolution can benefit all the world’s people, especially thepoorest and most marginalized groups.”9 According to the DOTForce Report:One third of the world population has never made atelephone call. Seventy percent of the world’s poor live in2. See U.S. Dept. of Com., Leadership for the New Millennium—Delivering onDigital Progress and Prosperity, 3d Annual Report, 3-19 (2000) [hereinafter Deliveringon Digital Progress] (discussing the Clinton Administration’s initiatives in providingdirect government assistance to the technologically disadvantaged, and in encouragingthe private sector to do the same).3. See Henry H. Perritt, Jr., Economic and Other Barriers to ElectronicCommerce, 21 U. Pa. J. Int’l Econ. L. 563 (2000); Bob Rowe, Strategies to PromoteAdvanced Telecommunications Capabilities, 52 Fed. Comm. L.J. 381 (2000).4. See Rowe, supra note 3, at 386; see also J.M. Spectar, Bridging the GlobalDigital Divide: Frameworks for Access and the World Wide Wireless Web, 26 N.C.J. Int’lL. & Com. Reg. 57 (2000) (discussing the need to institute policies designed to easebarriers to Internet usage among persons living in rural communities).5. Molly M. Peterson, Broadband Battle Over Small-Town U.S.A., Nat’l J., June16, 2001, available at 2001 WL 7182298.6. Gephardt Statement on the Democratic E-Strategy for Economic Growth (2/6),U.S. Newswire, Apr. 5, 2001, available at 2001 WL 4141881, at *3.7. See Margaret Chon, Erasing Race? A Critical Race Feminist View of InternetIdentity-Shifting, 3 J. Gender Race & Just. 439 (2000); Jerry Kang, Cyber-Race, 113Harv. L. Rev. 1130 (2000).8. See generally William E. Kennard, Equality in the Information Age, 51 Fed.Comm. L.J. 553 (1999) (discussing the disparity in obtaining Internet access based onrace and income, and the public and private sectors’ efforts to bridge the gap); Mark J.Maier, Affordable Internet Access for All Americans, 6 Rich. J.L. & Tech. 8 (1999)(discussing how government incentives can be used to encourage affordable pricing).9. Digital Opportunity Task Force, supra note 1, at 3.
- Page 116 and 117: his refusal to sell or license his
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desirable to sellers and buyers alike. Moreover, consumerswithout access to the Internet will miss not merely onlineshopping opportunities, but also access to the mass <strong>of</strong> sometimesedifying information available on the Web.This problem has at least two related facets: who will haveaccess to technology and what specific means <strong>of</strong> access may theylegitimately employ? Policymakers have labeled the formerproblem <strong>of</strong> unequal access to technology the “Digital Divide.”1Indeed, this issue has been with us for so many years that theterm “Digital Divide” has grown in the collective consciousness toa point where it is almost passé. Nevertheless, unequal access toInternet technology will remain a concern in the near future andinequalities may grow for some time rather than shrink. Even ifpolicymakers could solve the problem <strong>of</strong> unequal opportunity toaccess the Internet, what technology would the formerlydisenfranchised or even the Internet-savvy use? As technologymarches on, the question <strong>of</strong> who will have access to the bettertechnology, like broadband, arises.While almost everyone is familiar with at least some <strong>of</strong> theissues the “Digital Divide” raises, fewer may know about an accessdebate currently raging in the United States. That debate focuseson who may link to a Website and how they may do so. In recentmonths, certain popular sites have begun to employ an ancienttort, trespass to chattels, in an attempt to regulate access to theirsites. Depending on how courts finally resolve such claims, theuse <strong>of</strong> trespass to chattels to regulate access to sites could hamperthe emergence <strong>of</strong> the Internet as a market that approaches perfectcompetition and promises significant benefits for consumers.The following discussion addresses problems <strong>of</strong> access. Itdiscusses some parts <strong>of</strong> the debate over the “Digital Divide” andaccess to broadband technologies. It then reviews some <strong>of</strong> thecaselaw on access to Websites and proposes an approach toresolving such questions.A. Problems <strong>of</strong> Access Generally—The Digital DivideCommentators have thoroughly documented the “Digital1. Report <strong>of</strong> the Digital Opportunity Task Force, Digital Opportunities for All:Meeting the Challenge, at 3 (May 11, 2001), available athttp://www.glocom.ac.jp/dotforce/final/DOTForceReportv50g.pdf.
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