Can You 'Ban' People From the Internet?

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.

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