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.
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.