Three-Strikes Laws and The Human Condition: Is Access to the Internet a Right?

As the internet becomes an ever-larger part of daily life, the worldwide copyright industry has started a push for laws that require ISPs to deny internet access to copyright violators. Known as “three-strikes laws,” proposals for such measures have cropped up around the world and so have vehement objections to their implementation. This outcry, which has not arisen for other instances of internet access prohibitions, indicates the extent to which people believe that a court is necessary before internet access can be taken away. In other words, the fervent opposition to three-strikes laws demonstrates that internet access has come to be viewed as a human right, at least by a significant segment of the population.

Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network. The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime.

Three-Strikes Laws in the Copyright Context

The three-strikes laws that have been proposed by the copyright industry are very different. One of the first such laws to be introduced was in New Zealand, and included primarily a provision that an "Internet service provider must have policy for terminating accounts of repeat infringers."Notably, this law places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglects to do so, it might be prosecuted itself. The French version of a three-strikes law is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process.

Reaction to Three-Strikes Laws

Opposition to these measures around the world has been loud and long. New Zealand faced an “internet blackout” during which protestors replaced their internet pages with a protest page denouncing the law. The New Zealand government decided to delay implementation of the law due to the pressure it faced and is currently working on amending the law.

The UK government has abandoned a formal three-strikes law approach and is instead exploring a compromise in which ISPs are still in charge of sending warning letters to copyright violators, but would not involve disconnection as a punishment. In France, opposition came not only from the internet community but also from the European Parliament and the French Constitutional Council. The Council stated in its ruling that “the internet is a fundamental human right that cannot be taken away by anything other than a court of law, only when guilt has been established there.”

Internet as a Right?

The French Constitutional Council has hit upon a key issue with this statement. Much of the protest surrounding these various laws has dealt with concerns over the lack of court involvement, and it is clear that these laws have struck a nerve. This concern with court involvement speaks to a deeper issue about the relationship between expression and the internet. Along with France, Estonia, Finland and Greece have all made internet access a human right.

In this day and age a person prohibited from accessing the internet may not be able to hold down a well-paying job, or contribute meaningfully to public discourse. The internet has become so essential that it is almost impossible to imagine going an entire day without using it, as South Park has so sarcastically pointed out. Given that the internet has become so integral to our daily lives, it is logical to consider it a right. Not all human rights are bare necessities. For example, education has long been considered a human right, but is not strictly a necessity of life. Instead, education is considered a right because it provides for “the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” In much the same way, internet access is necessary for human dignity. This is not to say that access to the internet may never be denied to an individual. Indeed, rights such as liberty are suspended every day, but the suspension of human rights must be ordered by a court according to the provisions of the justice system.

Conclusion

If access to the internet is a right, how should such an obligation be interpreted? It might be to provide equal internet access to all, as some governments have undertaken. At the very least, such an obligation should prevent the government from detracting from the level of equality in internet access achieved at any given moment. Prohibiting certain people from accessing the internet contributes to greater inequality, though not all prohibitions of access should be treated equally. Denying internet access as a punishment for copyright violations, as distinct from as a punishment for crimes, seems especially problematic. If such measures were to go into effect, the copyright owners, who possess disproportionate speech capabilities already, would be able to dictate and push for further unequal access to speech without court intervention. More power does not need to be concentrated in the hands of the copyright industry. The recent proliferation of three-strikes laws can only undermine the freedom of expression.

-- StephanieTrain - 03 Mar 2010

Stephanie,

Nice essay. Is it ready for comments from others or are you still working on it?

Edit: Since you marked it ready for review, I am revising this comment to include my thoughts. I marked a few areas with red text that seem to be typos. For the block-quoted portion on section 92A, perhaps make it more clear that the first line is the title? It read like a strange sentence as is until I followed the link and saw it was not a sentence, it was the title. Also, in my Word processor count, the essay seems to come out to around 1100 words. You might want to cut it back to the 1000 word limit mentioned here.

I thought the essay made good points. Two resonated with me in particular: (a) that we don't need to increase the protective architecture of copyright law, and (b) that denial of internet access has a significant effect on folks. It seems that many of the laws in question just involve the termination of service from one ISP to a particular alleged repeat copyright infringer; that strikes me as a matter of contract law, and so while I agree that terminating service should perhaps involve some sort of appeal option you might consider saying more about that point.

The reason I agree that this basically contractual issue should perhaps have an appeal mechanism is because (a) with the uncertainty that surrounds fair use questions, it's sometimes hard to see when someone really is infringing, (b) rightsholders will often aggressively assert a user violated the law and unsophisticated (or sophisticated but lazy/risk-averse ISPs) could easily just take their word for it and boot you, and (c) in many locations, there are not realistic options if your ISP terminates your service, so in some sense the termination has a broader reach than the ISP-to-customer scenario suggests. I do think that the strongest points here are that there should be some remedies for people who are deemed to have "3 strikes" and are then cut off by their ISP.

I wonder if you think a breach of contract claim in that case is helpful? Or perhaps a tortious interference with contract claim if a rightsholder is falsely (or even maliciously) alleging copyright violation by the user. I suspect the ISP-customer service agreements are not pro-customer in such a situation, so probably not. And making the user sue to get back internet access is putting the burden in the wrong place for me. Do you think the market will keep the balance even - if ISPs terminate too often they'd lose users and so they will exercise restraint? I'm not sure the market has that power here, especially if the ISP is looking at e.g. a take-down notice from a rightsholder threatening to sue.

Lastly, you might consider mentioning the DMCA, section 512(i)(1)(A), since it relates to US law on repeat infringers and ISPs. There are a number of links online discussing its use, including this one from Chilling Effects. The DMCA, as noted in that article, presents an interesting quirk to the question you raise: assuming for a moment that we do have a right to internet access, do we have a right to access particular sites that are public (e.g. YouTube)? The DMCA repeat infringer provision pops up in the context of more than just AOL-type ISPs, since "service provider" gets a broad definition in parts of the DMCA.

Thanks for your thoughtful essay. I hope my comments are helpful and that you're having a good break.

-- BrianS - 13 Mar 2010

Thanks Brian! I fixed the typos that you pointed out and also cut down the word length. I just removed the block quote in the end in favor of quoting just one provision, because I'm not sure it added a whole lot to the essay.

The point you make about contractual remedies is interesting. Personally, I would hope that the solution is not to get to that point, which is why I argue that a court must issue a decision before internet access can be denied. Such intervention would I hope prevent abuse, though the claims that could be made after wrongful denial of access are interesting to consider.

I didn't address that provision of the DMCA because I was trying to limit my discussion to countries that have considered these proposals (and, as you pointed out, as I am already out of space!) but I do think that the article you cited is fascinating. Thanks for pointing it out!

-- StephanieTrain - 22 Mar 2010

Hey Stephanie,

I enjoyed your essay. Indeed, I think that the argument that internet access should be perceived as a fundamental right is gaining momentum, as a reaction to the "three-strike" laws that are being drafted in some countries. You might also want to note that this view was also initially shared by the European Parliament in last year's debate on the reform of the European framework for electronic communications; it proposed an amendment to the legislation with the following wording: "No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent." However, this amendment met strong opposition and it was finally adopted in a much more mild wording, in Directive 2009/136/EC ("This Directive neither mandates nor prohibits conditions, imposed by providers of publicly available electronic communications and services, limiting end-users’ access to, and/or use of, services and applications, where allowed under national law and in conformity with Community law, but lays down an obligation to provide information regarding such conditions. National measures regarding end-users’ access to, or use of, services and applications through elec­tronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy and due process, as defined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.")

-- NikolaosVolanis - 24 Mar 2010

Willful copyright infringement is a rarely prosecuted crime, but it is still a crime. We have become accustomed to ever-greater levels of civil enforcement against infringers, but criminal enforcement against infringers seems to remain infrequent. Viewed through the lens of U.S. copyright law, your paper really asks the question of whether private parties or prosecutors should be able to strip internet access away from people for copyright infringement. I doubt that is really the point you want to drive at, but the references in your introduction to stripping Internet access as a punishment for crimes raise the question. I think the deeper question you are driving at is whether copyright infringement is the kind of conduct that can justifiably be punished by stripping a person of Internet access. I think it can fairly be argued that Internet access is so important to the exercise of well-established rights that stripping access is a punishment that does not fit the “crime” of infringement.

-- StephenClarke - 30 Mar 2010

Nikoloas, thank you for point out that interesting change in wording!

Stephen, I'm actually more concerned with the distinction between the two situations (ie when a private party strips the right to internet access and opposed to when a court does so). I think that there are situations in which internet access might arguably be stripped but that these circumstances should always be determined by a court.

-- StephanieTrain - 01 Apr 2010

In that case, why do you think a court is such an amazing safeguard? The RIAA did a great job of proving that private actions for copyright infringement can work grave injustices. Furthermore, suing the most harmless end user infringers can be a profit maximizing strategy. See, Matthew Sag, Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For the Recording Industry’s File Sharing Litigation, 4 NW. J. TECH. & INTELL. PROP. 133, 147, 154-55 (2006).

-- StephenClarke - 02 Apr 2010