By Louise D. Williams, JD, LLM, Senior Director for Economic Growth at DT Global (see full bio at the end of the article).
In March 2020, no sooner had COVID-19 lockdowns begun sweeping the globe than the breadth of the world’s “digital divide” came into full view. The pandemic forced students, workers, and businesses worldwide to carve digital pathways toward business-as-usual-as-possible. They did so, respectively, by transitioning to online learning, endeavoring to work remotely (job-permitting), and increasing their investments in digital services and e-commerce.
Almost immediately, painful differences in the ability to adapt emerged. Experiences of whole communities diverged according to whether they dwell in wealthier or poorer countries, in cities or rural areas—or even in economies where political leadership prioritizes uptake and integration of technology solutions—versus those that do not. The moment also reinforced what has long been understood in places where gender gaps in education, economic participation, and political representation are the starkest: namely, that access by women to the digital technologies that could help them cope with the impacts of COVID-19 is less—often far less—than that of men.
In the broadest sense, around 2.5 billion of the world’s people remain offline altogether. And, although the remaining two-thirds of the global population can be said to have access to the internet—due especially to an upsurge of mobile phone use in just five years, and expanded availability of smart phones in particular—differences in the quality of access significantly impact whether efforts to mitigate lockdowns or other social distancing measures can succeed. As just one example, a study of online and distance education in Nepal describes how differences in connectivity between urban and rural college students exacerbated existing inequalities during the pandemic. According to the report, “Most . . . campuses/colleges in rural settings reported that the emergence of the COVID-19 pandemic had disconnected them from the continuation of teaching and learning activities.” Conversely, “university teachers and students from urban areas often explained how they experienced ‘the new learning and sharing platform in this digitalised world.’”
Narrowing digital divides is a clearly stated priority across global, regional, and bilateral development institutions, including the United Nations, the World Bank, and various regional development banks. The International Telecommunications Union (a specialized agency of the United Nations) has set the following targets for digital inclusion by 2025:
- National Broadband Strategy—established and funded in all countries
- Affordability of entry-level broadband services—less than 2% of monthly gross national income
- Broadband-Internet user penetration:
- 75% worldwide
- 65% in developing countries; and
- 35% in least developed countries
- “Sustainable digital skills”—60% of youth and adults
- Digital Financial Services—40% of the world’s population
- Small- and medium-sized enterprise (SME) inclusion—reduction of “un-connectedness” by 50% per sector
- Gender equality achieved across all targets.
To help societies worldwide rise to the global call to safely expand access to connectivity, lawyers must do their part. If anything, as governments and multinational firms rush to roll out new technology-based solutions and investments, engaging the rule of law to protect the values of transparency, equity, openness, innovation and sustainability has never been more critical. Whether through structuring digital policy, negotiating international investments, facilitating appropriate regulatory oversight, or fighting for the digital inclusion of marginalized groups, lawyers in all countries must be present at the scene.
Below are three urgent ways lawyers can help:
1. Push for international best practice within the legal underpinnings of connectivity, with an emphasis on transparency, free and fair competition, and mobility of data. Far less exciting than the specific next-generation technologies that promise accessible, affordable digital access in even the world’s farthest corners—but still critical for success—are basic governance conditions that ensure that digitization will unfold with clear mechanisms for transparency and mindfulness, ultimately, of the public good. By now, most of the world’s countries have established national broadband strategies (or plans) that set forth their respective visions for digital development. Ideally created through collaborative processes that fully integrate perspectives from across society, these strategies generally incorporate national digital targets and commitments, agency roles and responsibilities, public financing mechanisms, and national capacity-building requirements.
Today, lawyers can assist in reviewing, refining and updating countries’ national strategies—and the laws and regulations that implement them—to ensure the best, most sustainable long-term results. First, lawyers can make the case for and prepare the language that requires governments to resist consolidation of power within unaccountable, non-transparent institutions. Specifically, they can help governments move beyond traditional, anticompetitive monopolies in telecommunications services (whether privately or state-owned) and, at all junctures, ensure transparent and efficient allocation and management of public assets, including spectrum, transmission lines, rights of way, and more. Lawyers can also delineate and defend the case for separating the regulators of digital services from service suppliers, for the purpose of allowing fair market conditions, especially for consumers.
Lawyers are also essential for explaining and defending the principle of free flow data, as opposed to requirements that certain data be physically maintained within the borders of a single country. This point is critical not only for facilitating competition, innovation, and investment, but also for safeguarding the online exercise of fundamental freedoms, including freedom of expression, association, religion, and peaceful assembly. At the same time, as the proliferation of online hate speech and extremism is increasingly discerned and understood, lawyers will be essential for navigating solutions to these problems across digital platforms. Indeed, few professionals take as seriously as lawyers the ramifications of public curtailments on free speech. Finally, lawyers can help countries and firms define an information and communications technology (ICT) infrastructure that prioritizes data security without restricting data flows.
2. Assist governments and innovators in navigating rapid and reasonable regulation of digital technologies. Worldwide, government and private sector actors alike express concern over the pace and effectiveness of developing appropriate regulations pertaining to new technologies. The concern is that digital technology changes faster than regulators can keep up, and that adhering to current requirements may discourage innovators from trying out new ideas. Yet there is no escaping the reality that new technologies—including “fintech,” Artificial Intelligence, drones, robotics, autonomous vehicles, 3D printing, and many more—most certainly call for government oversight. Where the regulatory context cannot adapt as quickly as the public demands, confidence and even patience in the rule of law itself diminishes.
From various vantage points, lawyers should seize the opportunity to be “principles-based” facilitators—as opposed to inhibitors—of digital innovation. At the international level, they must continue to create and promote procedural standards pertaining to regulation of digital advances, ensuring that the practices of transparency, stakeholder participation, coordination, and impact assessments for new requirements are integrated into, and practiced within, all country-based approaches. At the same time, global efforts to bring standardization to digital industries is a crowded, not-necessarily reliable space: a 2007 study identified more than 200 organizations—including long-established international bodies, sector-specific professional associations, and even open-source specification platforms—involved in standardization of digital industries, a number that has surely become even more unwieldy. Today, there remains a significant need for greater coordination among regulatory authorities, along with “more robust dialogue between big tech software engineers, data scientists, regulators, and civil society” and “an international standards road map to properly frame international digital cooperation,” as summarized in 2019 by Michael Girard, a fellow at the Center for International Governance Innovation.
At the national or sector-based level, lawyers are needed to facilitate cooperative public-private solutions to regulatory imperatives. The “regulatory sandbox” concept, for example, allows enterprises to test new technology-based products without undertaking full government authorization or licensing processes. This approach encourages innovation in such sectors as finance, communications, transport, health, and others. After a limited period of time, where companies demonstrate that their service or product supports the public good, they may become licensed to operate under a waiver of an existing regulation that is out-of-date or unduly burdensome. Alternatively, firms testing new technologies may collaborate with regulators to determine the proper parameters of licensing or permitting requirements.
3. To achieve digital gender equality, begin by strengthening equality throughout the law. An array of issues contributes to the world’s digital gender divides. These issues include poor access among girls and women to digital technologies and the internet; a low base of skills and confidence necessary to engage these technologies and participate in their design and production; fear of online harassment or privacy vulnerabilities; and, in some environments, active discouragement of girls and women, by their families, to explore the internet. In 2015, a survey report by GSMA (an association of mobile operators) described a range of social restrictions placed on women, with this example from India underscoring how low personal autonomy impacts whether and how women can access basic digital capabilities:
In India, gender disparities in financial autonomy affect the way women obtain a SIM and handset. Only 19% of female mobile phone owners in India reported making the handset purchasing decision themselves compared with 72% of men, and 41% of women had no role at all in choosing a handset (versus 18% of men). Moreover, of the 44% of female handset owners who used their own money or the household budget to pay for their handset (versus 83% of male handset owners), 61% had to ask for permission to spend this money on a handset.
Though not legal issues per se, the digital restrictions on women encapsulate the inevitable consequences of lack of equality under law, which can be said to impact girls and women from the day they are born (if not before). In rolling out its Women, Business and the Law 2021 report—the seventh annual compilation of how, specifically, various economic laws and regulations treat women differently from men across 190 countries—the World Bank delivered the stark news that, today, “women still have only three-fourths the legal rights of men, on average around the world.” An accompanying blog post reported that, as a result of COVID-19, gender-based disparities and vulnerabilities only became worse:
While many [economies] have acted to combat the gendered effects of the pandemic, economic security may be out of reach where the legal environment itself fails to encourage and incentivize women’s work. Reforms can serve as an important catalyst to improve daily life for women and their communities under any circumstance . . . For an inclusive and resilient recovery from this pandemic, we must repair the foundation we have built.
Thus, digital gender divides cannot be addressed without meaningful legal reform. Although national law, of course, tends to enshrine or reflect social and cultural attitudes about the roles of women and men, Women, Business and the Law supplies a blueprint for expanding opportunity through the relatively benign mantra of “equal opportunity under law.” Specific areas of engagement include equalizing the types of jobs, tasks and hours that women are permitted to work, permitting women the same freedom of movement and access to finance enjoyed by men, outlawing pay discrimination on the basis of sex, and creating legal consequences for sexual harassment at work, in public, and at school.
Whether they work in regions where COVID-19 has begun to recede, or in countries where the pandemic still rages, lawyers should never doubt their capacity—and responsibility—to make a difference in shaping the future of digitalization. Nor should they be daunted by a sense that the technologies are too new or sophisticated for them to be able to facilitate procedural transparency, accountability, and inclusion. The rule of law must always find its place.
About the Author
Louise Williams is a Senior Director for Economic Growth at DT Global, an international development contractor working in more than 90 countries worldwide. For more than 20 years, Louise Williams has promoted economic growth through legal, regulatory, and institutional regimes that are transparent, accountable and inclusive. Louise helps strengthen systems of economic policymaking, public-private engagement, transparent governance, enterprise formalization, business licensing and permitting, access to credit, and cross-border trade. Prior to joining DT Global, as both an independent consultant and Principal Associate/Practice Lead at Nathan Associates Inc., Louise led a range of women’s economic empowerment initiatives, including the APEC Women and the Economy Dashboard; the APEC Women in Transportation Data Framework and Best Practices initiative; APEC Women in STEM; APEC Women and Entrepreneurship (WE-APEC); and USAID’s 2015 guidance for integration of gender issues into trade capacity-building projects in the Middle East and Asia. Louise’s experience spans more than 50 economies across Central Europe/Eurasia, Asia/Oceania, Sub-Saharan Africa, Latin America/the Caribbean, the Middle East/North Africa, and the Indian subcontinent.
 Women in the aggregate are less likely than men to access and use the Internet, with the global Internet penetration rate for women on all devices about 48 percent in 2019, compared to about 58 percent for men. Int’l Telecomm. Union, Measuring Digital Development: Facts and Figures 2019, 4 (2019), https://www.itu.int/en/ITU-D/Statistics/Documents/facts/FactsFigures2019.pdf. Between 2013 and 2019, the global gender gap increased, a trend attributed by the International Telecommunications Union (ITU) to rapid growth in the number of male Internet users, especially in developing countries. Id. Of course, these differences are just a function of the massive global gender gap, which the World Economic Forum reports on annually. See, e.g., World Econ. F., Global Gender Gap Report 2021 (2021), http://www3.weforum.org/docs/WEF_GGGR_2021.pdf.
 Alexandre Ménard, Understanding the Growing Global Connectivity Divide, McKinsey Digit. (Aug. 4, 2020), https://www.mckinsey.com/business-functions/mckinsey-digital/our-insights/digital-blog/understanding-the-growing-global-connectivity-divide.
 See Int’l Telecomm. Union, supra note 1, at 5.
 Kamal Raj Devkota, Inequalities Reinforced Through Online and Distance Education in the Age Of COVID-19: The Case of Higher Education in Nepal, Int’l Rev. of Educ. 145, 145 (2021), https://link.springer.com/content/pdf/10.1007/s11159-021-09886-x.pdf.
 Id. at 158.
 Int’l Telecomm. Union, The State of Broadband 2020: Tackling Digital Inequalities 5 (2020), https://www.itu.int/dms_pub/itu-s/opb/pol/S-POL-BROADBAND.21-2020-PDF-E.pdf.
 See Broadband Comm’n, Broadband Strategies, Policies and Plans, 2019 (2019), https://www.broadbandcommission.org/Documents/ITU_BroadbandPlans_2019.pdf.
 See The State of Broadband 2020: Tackling Digital Inequalities, supra note 7, at 12-14.
 Data localization rules that require data storage, management, and/or processing to occur in a single country are a major impediment for firms engaged in digital trade because they prevent firms from taking advantage of the cost, speed and security advantages offered by the distributed nature of cloud-based technologies. U.S. Int’l Trade Comm’n,Global Digital Trade 1: Market Opportunities and Key Foreign Trade Restrictions 273, 277-78 (2017), https://www.usitc.gov/publications/332/pub4716.pdf.
 Andrew Updegrove, ICT Standards Setting Today: A System Under Stress, First Monday (June 4, 2007), https://firstmonday.org/ojs/index.php/fm/article/view/1911/1793.
 Michel Girard, Global Standards for Digital Cooperation, Ctr. Int’l Governance Innovation (Oct. 28, 2019), https://www.cigionline.org/articles/global-standards-digital-cooperation.
 Ariel Magid & Raiyan Kabir, Social Norms in the Gender Digital Divide: USAID Digital Strategy Update, ICTworks (Apr. 21, 2021), https://www.ictworks.org/social-norms-gender-digital-divide/#.YIFTCGRKg6E.
 GSMA Connected Women,Bridging the Gender Gap: Mobile Access and Usage in Low- and Middle-Income Countries 60 (2015), https://www.gsma.com/mobilefordevelopment/wp-content/uploads/2016/02/Connected-Women-Gender-Gap.pdf.
 Norman Loayza & Tea Trumbic, Women, Business and the Law 2021: Women´s Economic Empowerment is Critical to Resilient Recovery Efforts, World Bank Blogs (Feb. 23, 2021), https://blogs.worldbank.org/developmenttalk/women-business-and-law-2021-womens-economic-empowerment-critical-resilient-recovery.
 Nisha Arekapudi, World Bank Report: When COVID Struck, Gender Equality Came Crumbling Down, LSE Bus. Rev. (Mar. 8, 2021), https://blogs.lse.ac.uk/businessreview/2021/03/08/world-bank-report-when-covid-struck-gender-equality-came-crumbling-down/.
Citation for Cover Image
David Talbot, The Unacceptable Persistence of the Digital Divide, MIT Tech. Rev. (Dec. 16, 2016), https://www.technologyreview.com/2016/12/16/155240/the-unacceptable-persistence-of-the-digital-divide/.