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 copyright industry (led by the US movie studios) 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.

No, that doesn't follow. I don't make a "human rights claim" when some thug down the block claims to have a right to listen to my phone calls, or tries to steal the books off my shelves on the claim that they really belong to him. Nor do I have to believe in "the Internet as a human right" if he makes a corrupt deal with the telephone company to interrupt my service if he feels like it in order to extort money from me. I might think of the service as a human right, but my objection to the thug is distinct and unrelated. This is an unexplained logical lapse that drives the remainder of the essay off course.

Denial of internet access has been used as a tool by justice systems previously. Several countries have been using denial of internet access as a probation condition. 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 or 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. The difference with the new internet three-strikes laws is that these are not tools to be used by a justice system: they are designed so that it is the copyright holder or the ISP that pronounces a person guilty of violating the law.

Three-Strikes Laws in the Copyright Context

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.

I don't understand what an expression like "with the added twist" adds to comparative legal analysis. Two utterly different approaches, one based on setting standards for service providers and the other holding them vicariously liable for customers' infringement in the absence of measures to prevent sharing, are being described as similar, rather than different, and the difference, which seems fundamental, is described as though it were an ornament of some kind. If the difference is immaterial, you need to explain why.

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.

So what does "tough" mean? Tough on rights-holders, who must deal with due process rather than making contractual bargains with ISPs they own or play golf with? Or tough on sharers, who are told that the State has joined hands with their oppressors, and will now administer justice according to the unjust laws that the State is already not changing? The debate in France is atypically tough, because La Quadature du Net has been an effective promotional instrument even as the Sarkozy administration has been unusually insensitive to the implicit anti-Americanism of French cultural life, and has been particularly supine in its dealings with the US industries. So government in a statist system with a pseudo-liberalized telecomms sector has pursued the industries' desire to have their barbed wire paid for by government with exemplary strength, and civil society fought back reasonably hard. In the UK, on the other hand, the telecomms sector would not have folded so easily unless forced by a combination of Rupert Murdoch and the example of the French, but civil society was supine, and now has a worse result. In the US, of course, legislation is impossible and the telecomms oligopolists have to be bribed, while the cable incumbents are mostly in bed with content anyway. Right now, for example, you have "three strikes" if you're a Time-Warner cable customer, but TW simply rolls over and lets MPAA kill-switch your Internet service, so they're not even the ones actually pulling the plug, and they reserve the right to be nice to your and give you a Hershey's kiss afterwards, so you're perfectly clear it wasn't them who abused you. Is that more or less tough, do you think? One of the thugs rapes you and the other pretends to be your friend so you'll keep giving him money every month while he spies on you for the other one, who might come back?

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.”

But that assumes the existing socialist telecomms outcome, in which France Telcomm (now Orange) is officially a private entity competing with other entities in the market, but which has tacit incumbency on the condition that it offer everyone in France global-standard broadband at a reasonable price. So for Euro 40 /month everyone in France has 100Mb wired service. The French Constitutional Court said service was a right, not a fundamental human right. They didn't say government was now going to be obliged to provide it to everyone regardless of whether they paid Euro 40. When I go to Paris, I'm a human being, but I don't get free Internet service, and I can't even pay local prices. The Court said government couldn't interrupt service or provide for its interruption without a pretermination hearing. We used to believe this was true in the United States with respect to essential public support for individual existence, see Goldberg v. Kelly, back when we used to provide essential public support for individual existence. But we didn't say welfare was a fundamental human right, obviously: a Democratic President concerned about low poll numbers in an election year in which he was fated to win handsomely anyway only to be promptly impeached, but not for the astounding levels of political venality that financed his victory, agreed to the abolition of the hardly fundamental right to welfare for everybody receiving it, so we don't have it anymore now that roughly a fifth of American children live in poverty and long-term unemployment levels are as high as they were since the Great Depression. We just said that welfare was important to people and as long as government gave it to them they couldn't take it away without holding a hearing. That's what the French Constitutional Court said too, more or less, if you correct for rhetorical chest-pounding and political codswallop.

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.

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.

And the right to clean drinking water, that most of the world doesn't have, but which is utterly essential to life? "Rights" don't emerge from logic.

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.

You could say that Internet access is the method of facilitating the right to education, but neither of those rights exists, actually, and ending ignorance remains a struggle against power. Which is where rights come from: they are wrested from power through struggle, not deduced by logic and immediately applied.

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.

So here you conclude by returning to the problems we have, of inequality and misuse of power. Your conclusion, in this context, seems to be that the solution to our problems lies in announcing that we have a fundamental human right not to have the problems anymore. The reader cannot be satisfied by that, and must feel, as I feel, that something has gone wrong with the essay to have wound up here. You need to avoid that appearance of tautology by focusing not on what we would call having solved our problems, but how we are actually to solve them.

-- StephanieTrain - 03 Mar 2010