Computers, Privacy & the Constitution

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StephanieTrainFirstPaper 14 - 20 Jul 2010 - Main.StephanieTrain
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Three-Strikes Laws and The Human Condition: Is Access to the Internet a Right?

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Three-Strikes Laws and The Human Condition: Is Access to the Internet a Right?

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As the internet becomes an ever-larger part of daily life, the worldwide copyright industry

Really it is the US copyrights industries. They have non-US equity owners and foreign allies, but if it weren't for the US companies that control global popular culture, particularly the eight movie studios that own the global dreck business and their corporate holders, this wouldn't be happening.

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.

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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
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  lapse that drives the remainder of the essay off course.
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Several countries have been using denial of internet access as a punishment for crimes already. 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.
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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.
 
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Referring to probation conditions as punishment, which you do twice here, is both incorrect and misleading in a comparative context. The question whether a party can be asked to relinquish in return for an end to justified incarceration incident to criminal sentence freedoms he would otherwise be entitled to by law is not generally hard. No one is obliged to give him Internet service in prison, so he is not entitled to Internet service out of prison, regardless of whether Internet service is otherwise a right.

The punishment has also been explored in the US 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.

That's a common factor, as you say. But observation of a common factor is not an argument and it does not support an unstated inference.
 

Three-Strikes Laws in the Copyright Context

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The three-strikes laws that have been proposed by the copyright industry are very different.

And if so, what is the relevance of the preceding discussion to it? You need to help the reader to follow the development of an idea. This sentence creates discontinuity rather than establishing relevance.
 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
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 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.
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The NZ government faces a general election this year, with a strong possibility that Social Democrats will take over government, and with some elements of the social democratic coalition beginning to explore the intellectual and political ground of the Pirate Party movement in Scandinavia. A combination of free culture activism and an understanding that a guy who made money on The Lord of the Rings is not therefore the expert on what New Zealand needs from the global order of culture is a political force that will have some effect on the outcome.
 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.”
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Internet as a Right?

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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. Along with France, Estonia, Finland and Greece have all made internet access a human right.

No. In Finland, the government said that within its next planning cycle, everyone in the country (except for 2,000 homes in really inconvenient places) will live within a kilometer of some telecommunications facility through which they could receive at least slow DSL connections. That completes a government mandate to provide the possibility of broadband connection so defined to everyone reached by the national infrastructure. This is not analytically the same as saying that Internet access is a fundamental human right (those 2,000 rural households also contain human beings, for example). It's not even exactly the same as making Internet access a legal right. You can't do comparative law by copying what CNET says: the guy who writes their doesn't know crap about law, and he's not a reliable source. You have to read things for yourself. If they are in Finnish, that can be difficult.

Now, as to Greece. How you go from a constitutional provision that says everyone has the right to participate in the information society to the proposition that Internet access is a fundamental human right I have no idea. One needs first to show what the guarantee of participation means, and one needs to know what the principles are that govern limitations on individual degrees of participation. I used to have a constitutional right of interstate travel in the United States, see Crandall v. Nevada, which was understood to mean a right to travel without "showing my papers," which was understood to be the mark of police states where that fundamental right was not honored. The US is now a country in which one has to show one's papers all the time when traveling. Have I still a fundamental human right? Is it more defeasible than I understood, or absent altogether, and how do I know other than to compare this with the police states I knew in my youth? Then there's implementation. If the Greeks have a fundamental human right to Internet access, than something is wrong in Greece, which according to the World Bank statistics on Internet penetration is denying that fundamental human right to slightly more than 58 percent of its population. Let's get real.

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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.

Revision 14r14 - 20 Jul 2010 - 00:33:41 - StephanieTrain
Revision 13r13 - 18 Jul 2010 - 17:52:09 - EbenMoglen
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