Internet Bans: Unfair and Unconstitutional?

Current U.S. Position on Internet Bans

On April 2, 2010 the U.S. Court of Appeals for the District of Columbia struck down a 30-year computer ban imposed against a convicted sex offender. Similarly, the Third Circuit overturned a lifetime internet ban imposed against a child pornography offender in January 2010. (http://www.wired.com/threatlevel/2010/04/computer-ban/#more-15054) These courts noted that these sorts of sentences violate the fundamental First Amendment rights of convicts and are substantively unreasonable. However, not all circuit courts that have considered the issue of long-term computer or internet bans have found these sorts of bans to be unconstitutional. The U.S. Court of Appeals for the Eleventh Circuit upheld a lifetime internet ban against another convicted sex offender who used the internet to lure what he thought was a 13-year-old girl to engage in sexual conduct in August 2009. (http://www.wired.com/images_blogs/threatlevel/2010/01/dovecase.pdf) Additionally, these courts have recognized that bans on internet or computer usage are not per se unreasonable, and have analyzed them on a case-by-case basis. Judges have noted that the case-by-case analysis of these bans should involve the consideration of certain factors. For example, the Third Circuit noted that “we remain sensitive to three factors that have guided our prior holdings in this area: (1) the length and (2) coverage of the imposed ban; and, (3) the defendant’s underlying conduct.” (http://www.wired.com/images_blogs/threatlevel/2010/01/heckmancase.pdf)

Three Strikes Laws

The fact that some Courts of Appeals (though not all) are rejecting these sorts of “draconian” lifetime restrictions on internet and computer access, may suggest that courts would be inclined to reject these sorts of bans in the context of other non-sexually based cybercrimes. Specifically, the legality of internet bans for repeat copyright infringers is an issue of much current debate and speculation. (http://www.wired.com/threatlevel/2010/01/courts-split-on-internet-bans/) The Motion Picture Association of America has been pushing Congress to consider enacting a “three-strike measure” that would result in eventual disconnection from the internet for habitual offenders. (http://www.wired.com/threatlevel/2009/11/mpaa-filtering/) Other countries have enacted such measures. The United Kingdom recently passed the Digital Economy Bill which contains such a three-strike law. (http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article3353387.ece) Under this law, internet service providers would be required to terminate their service contract with users who have wrongfully downloaded copyrighted material three times (it is not yet clear whether ISPs will be required to share information concerning the identity of terminated users, effecting a complete ban from the internet).

The question presented by the debate over these sorts of bans is: what is it that makes the internet so special? That is, why is the banning of internet access any more objectionable than banning access to other instrumentalities of crime? Is not banning the use of the internet for cybercriminals analogous to prohibiting convicts from possessing firearms or suspending the licenses of drunk drivers? Or is it more akin to banning books, or school? Does the internet posses some special status due to the informational content it holds, demanding the classification of access to the internet as a fundamental right?

French and Finnish Examples

In 2009, Finland and France (two of a handful of countries to do so) made internet access a legally protected human right. http://news.cnet.com/8301-17939_109-10374831-2.html. http://technology.timesonline.co.uk/tol/news/tech_and_web/article6478542.ece. In June 2009, the French Constitutional Council eviscerated a law that would have created a governmental agency tasked with tracking internet users’ illegal downloading and automatically cutting off internet access after three illicit downloads or “strikes”. The Council declared that the “free access to public communication services online” was a fundamental right laid down in the Declaration of Human Rights, the preamble to the French constitution. Finland’s law went even further than merely recognizing access as a basic human right; it gave every Finn the right of access to 1Mb of broadband connection. The Finnish measure may have somewhat suspicious underlying motivations, especially given Finland’s reputation as a technological industry leader and the fact that it is home to at least one major tech firm (Nokia). Regardless, this law, and the French ruling, reflects a growing trend among countries of recognizing internet access as a fundamental human right.

Looking Forward to U.S. Position on Three Strikes Laws

The question now presented in the United States is how our courts would address such an three-strike internet cut-off statute. As previously mentioned, the U.S. courts that have ruled on lifetime computer or internet bans have acknowledge that these sorts of bans are not per se unreasonable, and as such, it is unlikely that our courts will go as far as recognizing access to the internet as a basic human right (if only because our courts are more comfortable conversing in the language of the First Amendment). But, if the weight of prior rulings with respect to sex offenders are any indication, it appears that U.S. Courts would be inclined to recognize access to the internet as at least somewhat analogous to accessing public libraries. http://www.newsvine.com/_news/2010/04/02/4106217-judge-city-cant-ban-sex-offenders-from-libraries. In Kreimer v. Bureau of Police, 958 F.2d 1242; 1255 (3rd Cir. 1992) the Third Circuit held that the First Amendment included the positive right of public access to information and ideas, including the right to some level of access to public libraries. This ruling (and other library access rulings) recognizes that some restrictions on library access are valid, as long as they do not entirely block public access to information and ideas. This position is seemingly compatible with the case-by-case determination into the validity of internet bans advanced by many U.S. Courts of Appeals evaluating such bans. A “three-strike” internet cut-off statute would entirely block access to the information and ideas contained on the web without individualized analysis. Such a law would appear to be unconstitutional under the First Amendment.

-- LuciaCaltagirone - 02 Jun 2010