B.2(ac). Right of Access to the Digital Sphere

The Government shall not restrict any Person’s access to the digital sphere for any reason, except as punishment for a crime following conviction or during pre-trial detention.

Access to modern media – wireless phones, the Internet, intranets, wi-fi, local area networks, etc., is not an optional or luxurious exercise in our world. Many jobs, especially entry-level jobs, can only be applied for online. Banking is electronic. Payment systems are electronic. Businesses are converting to cashless systems. Email and text messaging are central to communication. In some places, you can’t even pay for parking without a cell phone app. You simply can’t get by without access to the digital sphere. For that reason, in a free society, that access can’t be stripped from the people.

It goes beyond simple access, too. Not only can the press not be censored, but neither can other forms of digital communication. We have seen authoritarian regimes do precisely that when civil unrest creates a real or perceived threat to them. A free society can’t tolerate a government with that ability.

During pre-trial detention, the justification for a restriction must be grounded in the rights of other detainees and the prison or detention center staff. It may not be punitive or have the purpose of cowing or otherwise intimidating the detainee, who has not been proven guilty. That justification must be presented to the presiding judge at the initial hearing. The judge must review the requested restrictions individually and approve or deny them. The period between apprehension and arraignment is permissive in favor of the government. The exception to that permissiveness is that the detainee must be given whatever access is necessary to secure counsel.

While the restrictions following a conviction can and should be handled under statutory law, those in play during pre-trial detention need careful handling. Based on other provisions of this Charter,[1] there must be a hearing within 72 hours of detention. However, during that brief initial detention, the government still has to act to secure the rights, not only of the detainee, but also of other detainees and their own staff. The government can take broad action to restrain access to the digital sphere during this time. They can’t do so to break the mind, will, or spirit of the detainee. They also can’t deny any access that is necessary for the detainee to retain counsel. This goes further than the “one phone call” rule that TV shows have made popular.

At the initial hearing required by habeas corpus, the government has to show what restrictions on digital access it is requesting. It also has to show justification for why those restrictions are needed. The judge has a mandate to review those requests and approve or deny them. It isn’t intended as a “rubber stamp” exercise. Like every other interaction within the Judicial system under this charter, rights are paramount.

The digital sphere shall consist of, but is not limited to, access to the Internet, cellular telephone networks, satellite telephone networks, and comparable future technologies.

This right does not exempt anyone from their responsibilities for the proper handling of classified information.

Finally, it’s always important to agree on terms, so that we don’t find ourselves bogged down in semantic end-runs around the intent of the text. These final two sentences define the digital sphere, and affirm that other statutory law regarding the handling of classified material is not somehow rendered moot by this right.

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[1] See Article I, Section 2.B.2(h), which covers habeas corpus. Under this Charter, habeas corpus is explicitly extended to all detentions, whether civil or criminal.