A Constitutional Right to Technology?

A column in the Canadian Lawyer suggests that “technology in a modern advanced society such as the one in which we live, should be recognized as a constitutionally protected right to ‘life, liberty and security of the person,’ under s. 7 of the Charter of Rights and Freedoms”.

Does this suggestion appeal to you? What do you suppose it means in practice?

A bit later on, the columnist suggests he is talking about “access to at least the most basic and rudimentary elements of technology, and arguably, reasonable levels of technology”.

So: the right is access to technology – but … provided by whom? At whose expense? With what consequences for its denial? And with what limits?

It could mean that government (since Charter rights are rights against the state) may not do things that restrict access to technology. German courts have held that access to the Internet is a kind of human right, presumably a counterpart to freedom of expression and association. Should that principle be adopted in Canada, in the courts or by legislation?

The present column seems to go further than that. Would it give a person the right to a net neutrality policy, so access to (some) content is not denied?

Presumably the right would have to be – like some other Charter rights – subject to reasonable limits, such as laws that protect other values, e.g. copyright. A constitutional right to access to technology is probably not a constitutional right to peer-to-peer sharing of other people’s copyrighted works. And other constitutional rights, including privacy, would have to be balanced with it.

Most Charter rights can be provided for free, and claims that required public spending to provide the rights have not fared so well as ‘negative’ rights not to be interfered with. Is a right to access technology a positive right that requires state spending to provide for people who cannot afford their own technology? That gets complicated in a hurry.

Is this a discussion worth having, or is the column just an overly ambitious use of ‘rights’ language to make a statement about social pressures?


  1. “Is a right to access technology a positive right that requires state spending to provide for people who cannot afford their own technology?” The use of libraries to provide such access would be a starting point. Of course, that would require more public investment in such institutions especially when they are already in danger of being closed because of budgetary concerns. Implementation of an indexed living (minimum) wage would also assist in this endeavor and would alleviate government expenditure. There is also corporate sponsorship and donations that could be utilized to equip libraries to provide better and wider access to technology. But then again, using libraries as access points to technology may be seen as a wider right to access to information and knowledge, is access to education a constitutional right?

  2. Did we ever have a right to a telephone land line? A right to publish in newspapers?

    Creating a positive technology access right seems likely to have a negative effect overall. Funds will have to be taken and sunk into technology products, which given government’s history in such projects will be 1) awkward to use 2) underutilized and 3) expensive and 4) obsolete by the time they are implemented.

    Greater results seem likely with more minor (and cost free or relatively free steps) such as: remove restrictions on the access to non-secret government documents (court decisions etc.), and allow anyone who wants to operate an ISP to do so.

  3. The “right” to the Internet is not a newly professed one, and has some basis around the world.

    From Wikipedia:

    Several countries have adopted laws that require the state to work to ensure that Internet access is broadly available and/or preventing the state from unreasonably restricting an individual’s access to information and the Internet

    In the Canadian context, it’s also arguable that any such right would flow from s. 2(b), as the author suggests. However, he also cites Fraser, which raises other constitutional elements, in particular, s. 2(d) (leave alone that Fraser is now largely obsolete).

    The Wikipedia article above notes how the Internet has effectively allowed people to organize and associate, notably through the Arab Spring and Occupy movement.

    But I think for something like this to become entrenched there would have to be an explicit government action preventing or restricting such access to the Internet. Although this would appear to overlap with the definition of a “freedom” to use the Internet, it might then entail the purpose for which the Internet is being used.

    Given that free WiFi is found in nearly every major Canadian city, and countless other institutions including libraries also provide access, I don’t see how this “right,” if it was recognized, would be infringed upon.

  4. Maybe let’s start with a clearly recognized right to food and shelter, if we’re dealing with life, liberty and security of the person. What kind of Charter would we have if it guaranteed your access to Facebook but not to feeding your face?

  5. David Collier-Brown

    I suspect the technical community would consider it a right, in the rather limited sense that one should not be unreasonably prevented from purchasing access from their personal nets to the internet, by either legal or extra-legal means.

    The community broadly condemns countries that try to limit access by their citizens, even citing a duty to protect, so there is an argument to be considered about what legal means can be used, either by a government or a company.

    They (we) also treat our duopolies with contempt, pointing out that the companies are overcharging horribly by comparison with companies in the EU and even in the US. At some point the overcharging becomes an extra-legal means of restricting their access.

    In the latter space, I wonder if one could legally crowd-fund a class action suit against the oligopolists …

    Hey Internet Society*, what’s ISOC Canada’s view on this?

    [* I’ll forward the question]