Is it too late for three-strikes?
Europe is headed for an internal culture clash as French politicians endorse an industry-backed proposal to battle online piracy by barring people who repeatedly download illegal content. Known as three-strikes laws, the proposed policies would allow an ISP to remove customers who have repeatedly ignored notices to stop illegal downloading.
The French proposal is more circumspect than some similar proposals in the U.S., though it is often described as more far reaching. As a law, the system has some procedural safeguards in place to provide for a hearing prior to the enforcement of the provision. At the same time, if enacted the rule will be positive law rather than merely a policy of a particular Internet provider. Potentially, this gives its adoption a much more powerful impact.
Even as France is moving in this direction, the European Parliament is moving to ban such laws. In fact, the EU went a significant step further, adding language stating that "internet access is a fundamental right such as the freedom of expression and the freedom to access information."
Despite my deep concerns over Internet piracy and its real impact on jobs in the U.S. and development of new artistic works in the U.S. and abroad, the Internet has simply become too integrated into the public's access to news, governmental services, and social interactions to adopt this policy approach.
Increasingly, government documents, public records, and other essentials are available only on the Internet. The Internet is an essential tool used by most educational institutions. Arguably those cut off from their ISP can rely on public libraries for their access, but those cut-off without water and electricity can also be directed to public shelters.
The question is not whether shutting off the ISP is appropriate, but whether it should be done without some significant oversight. To the extent that the French proposal requires an administrative hearing, such a system might work. To be viable, such a hearing must put the burden on the ISP to demonstrate that the person abusing the ISP is guilty of the misconduct and allow for the accused misuser of the ISP to enter evidence in his or her defense.
In the modern information age, the ISP has taken on the role of a public utility, and like electric companies, water suppliers and gas companies, the utility should have a heavy burden before it cuts users off. Also, the ban must be limited in time. The British proposal, for example, caps the ban at one year. Three months would probably be sufficient for a first time offender unless the specifics were egregious.
The present proposals in the U.S. call for ISPs to control and regulate their users. This allows for none of the critical safeguards. The time-frame in which ISPs could have privately operated a three-strikes policy in the U.S. has probably passed. While Internet access has not been declared a fundamental right in the U.S., most of the public treats the Internet like a utility and any attempt to take self help will likely result in some form of utilities regulation.
The debate on this issue may continue for quite a while, but as the implications of a three-strikes policy gain attention, the popularity of this solution will likely erode.
The French proposal is more circumspect than some similar proposals in the U.S., though it is often described as more far reaching. As a law, the system has some procedural safeguards in place to provide for a hearing prior to the enforcement of the provision. At the same time, if enacted the rule will be positive law rather than merely a policy of a particular Internet provider. Potentially, this gives its adoption a much more powerful impact.
Even as France is moving in this direction, the European Parliament is moving to ban such laws. In fact, the EU went a significant step further, adding language stating that "internet access is a fundamental right such as the freedom of expression and the freedom to access information."
Despite my deep concerns over Internet piracy and its real impact on jobs in the U.S. and development of new artistic works in the U.S. and abroad, the Internet has simply become too integrated into the public's access to news, governmental services, and social interactions to adopt this policy approach.
Increasingly, government documents, public records, and other essentials are available only on the Internet. The Internet is an essential tool used by most educational institutions. Arguably those cut off from their ISP can rely on public libraries for their access, but those cut-off without water and electricity can also be directed to public shelters.
The question is not whether shutting off the ISP is appropriate, but whether it should be done without some significant oversight. To the extent that the French proposal requires an administrative hearing, such a system might work. To be viable, such a hearing must put the burden on the ISP to demonstrate that the person abusing the ISP is guilty of the misconduct and allow for the accused misuser of the ISP to enter evidence in his or her defense.
In the modern information age, the ISP has taken on the role of a public utility, and like electric companies, water suppliers and gas companies, the utility should have a heavy burden before it cuts users off. Also, the ban must be limited in time. The British proposal, for example, caps the ban at one year. Three months would probably be sufficient for a first time offender unless the specifics were egregious.
The present proposals in the U.S. call for ISPs to control and regulate their users. This allows for none of the critical safeguards. The time-frame in which ISPs could have privately operated a three-strikes policy in the U.S. has probably passed. While Internet access has not been declared a fundamental right in the U.S., most of the public treats the Internet like a utility and any attempt to take self help will likely result in some form of utilities regulation.
The debate on this issue may continue for quite a while, but as the implications of a three-strikes policy gain attention, the popularity of this solution will likely erode.
