Is it appropriate to "ban" someone from the Internet for downloading someone else's music? Is turning someone into an Internet exile a proportionate punishment for illegal file sharing?
The French have passed such a law, and the British, led by the queen, have proposed legislation. Some companies that produce music and video seem to be encouraging similar approaches across Europe and in the U.S.
Meanwhile, the U.S. and other countries may be considering it in secretive world trade negotiations.
The particulars may vary, but the basic idea calls for escalating responses by Internet service providers (ISPs) to repeated allegations of online copyright infringement, up to and including total disconnection. This type of ISP enforcement has come to be known as a "three strikes" or "graduated response" rule, and it is fraught with problems.
Here's how such a plan might work: an ISP is alerted that one of its subscribers is engaged in some action that may be a copyright violation. The subscriber receives a warning, making it clear that someone is watching.
If there is further alleged infringement, the subscriber receives another, more sternly-worded notice about the alleged illegal action. At some point, if the behavior continues, the ISP takes the matter into its own hands and starts imposing concrete sanctions, including suspending the connection – effectively turning the subscriber into a kind of Internet exile for a significant period of time.
No Proposals in U.S. Yet, but Pressure Is Mounting
Proponents hope this approach will streamline the copyright enforcement process so rights holders need not pursue each infringer individually, a time- and cost-intensive process.
The scope and length of disconnection can vary, as can the process to punishment. Startlingly, judicial determination of infringement is not always required. For example, the British proposal would empower a regulatory agency to establish the criteria for suspension.
The French law establishes a one-year suspension as a supplemental penalty to be imposed by a hearing process. The French law takes the extra step of barring a subscriber, not just from his or her present Internet provider, but also from any other ISP, imposing total (though not permanent) exile on an infringer.
While we have seen no specific proposals in the U.S. yet, it is clear that major U.S. copyright interests are pushing for ISPs to take a proactive role in fighting infringement. There have been reports that major copyright interests are looking to make deals with ISPs to adopt some kind of "graduated response" regime, as well as asking policymakers to encourage such an approach.
Three Strikes Rule Could Hit the U.S. Soon
The three strikes concept, in one form or another, could very well be a live issue on this side of the Atlantic in the near future.
To be clear, copyright infringement on the Internet remains a problem, and enforcement against infringers is a necessary and appropriate part of a viable copyright system. Moreover, having ISPs forward warning notices to alleged infringers could be a useful step for reducing infringement without resorting to cumbersome lawsuits — all while appropriately leaving the dispute squarely between the copyright holder and the alleged infringer.
However, a three strikes policy leading to Internet exile raises serious red flags.
Core Constitutional Question
The Internet has become a core component of our right to free speech and access to information. Simply put, being online is now an essential part of the day-to-day lives of many in our society.
Our courts have time and again recognized the significance of the Internet as a vital platform for speech and political participation – extending the highest level of First Amendment protection to this medium.
Any law that results in cutting off a person's Internet access in the way the three strikes proposals suggest would violate a person's First Amendment rights. Such a punishment would severely curtail the exercise of core speech rights and impact a person's ability to participate in many aspects of social, economic, and political life.
Denial of access would also function as a legally impermissible "prior restraint" on future speech.
In the 20th century, policymakers recognized the telephone as essential to communication, and they kept telephone access from being cut off in all but a few narrow circumstances (such as when law enforcement authorities identify someone running a real-time wagering operation over the phone).
And even when a telephone line was required to be cut, there was never any mandate in effect to try and keep a person from using a telephone of any kind.
Similar caution has been exercised to date in relation to Internet access. Not to put too fine a point on it, but the courts have been loath to cut off all Internet access even for those convicted of downloading child pornography. Offenders still have had Internet access, albeit under supervised conditions.
Importantly, judges have taken an individualized, narrowly tailored approach in approving such access restrictions.
In today's digital world it is clear that the Internet is even more important than the telephone of yesteryear. Cutting off Internet access for someone – turning a person into a digital exile – would have sweeping consequences.
Banning Internet Access Could Hinder Online Political Participation
Such a penalty would cut off a major avenue for the kind of robust online political participation that we witnessed in the last election cycle. Access to vital government services would be seriously impaired. Myriad social and economic interactions would be obliterated.
Forget looking for a job or communicating with your friends. Forget being able to surf the Web anonymously to find others "just like me" who share rare diseases, political views, or just similar tastes in movies or art. When you view cutting off a person's Internet access in these terms – those most familiar to the average American -- the punishment hardly seems to fit run-of-the-mill alleged copyright violations.
The free speech issue is just part of the legal quagmire a three strikes law would face. Pretend for a moment that it is proportionate and appropriate to cut off a person's Internet access as a punishment for a copyright violation. Proponents of three strikes favor a streamlined means to this end because it is faster and less costly than a full lawsuit.
But because of all the aspects of life that Internet access impacts, no person should be sentenced to Internet exile without being given a day in court and the ability to appeal the decision.
The consequences are so severe that it is the kind of penalty we cannot rightly impose without full, individualized, judicial consideration and due process. Otherwise we risk a system that imposes criminal type penalties based on little more than mere allegations.
Make It So?
Aside from the legal and constitutional issues, there is the practical absurdity of trying to actually enforce a three strikes law. A discussion of how to make such a law work quickly goes down a rabbit hole of what ifs and "but what about this?" questions.
Would the rest of the offender's family be cut off from home Internet access? If not, how would the ISPs distinguish between users in the home? Would the ban include access at a person's work? What about mobile Internet devices? Would an Internet exile suddenly be banned from owning a cell phone?
What if the person visits the library or wanders into an Internet cafe? How about piggybacking on a neighbor's open WiFi connection?
Would the banned user have to register in every jurisdiction, like a convicted sex offender? Would the government compile and house a nationwide "blacklist" of users banned from Net access?
And what is the liability for those caught intentionally or inadvertently allowing a "banned" person access to the Internet? It is a short journey down the rabbit hole straight into the warm embrace of the Queen of Hearts.
Should ISPs Play Role of Copyright Cops?
Lastly, regardless of these constitutional and practical complications, a three strikes law would fundamentally change the role of the ISP in Internet communication. ISPs are communications providers – not, at least up until now, copyright enforcers.
Under current law, ISPs are not responsible for supervising the online behavior of their subscribers. U.S. law does strongly encourage ISPs to put users on notice that repeated infringement could result in termination, but nothing in the law or its interpretation suggests that ISPs must terminate access based merely on repeated allegations of infringement.
Playing the part of copyright cop, judge and jury just isn't in the DNA of the ISP industry, nor should it be. And once deputized to play this role for one powerful industry, it is hard to imagine how to draw the line against a host of other petitioners, putting the Internet's essential openness and neutrality at risk.
Leave It In Europe
Three strikes copyright enforcement is a clear and present threat, with or without legislative action. Even "voluntary" agreements between content companies and ISPs to cut off users accused of repeat infringement would have the practical effect of creating Internet exiles who have not had their day in court.
And if, as some in the content industry have demanded, Congress or other government bodies encourage or create pressure for such agreements, the constitutional concerns will begin to drive the debate.
It is easy to see why copyright interests may be frustrated that, despite strong copyright laws with high penalties for infringement, infringement remains commonplace in the online environment. But the response to that frustration cannot be to abandon legal process, impose full exile based on allegations, and turn ISPs into copyright cops.
Both the Constitution and good policy demand that the United States leave this idea in Europe.
Leslie Harris is president and CEO of the Center for Democracy & Technology.