Friday, November 06, 2009

EU Adopts the Internet Freedom Provision...

Raging around the digital copyright debate is the issue of how people who commit piracy ought to be punished. Right now, it is primarily through lawsuits brought by the copyright holders. However, the idea has been floated around to create a "three strikes and you're out" law, whose intention would be to disconnect copyright infringers from the internet altogether by creating national blacklists.

The problems with such "three strikes" laws include the difficulty in accurately determining the alleged pirate's identity as well as providing demonstrable evidence of their infringing acts. After all, if someone hacks into your computer, uses it as a proxy, or infects it with a virus or other piece of malware transforming it into part of a botnet, then, even though you didn't do anything wrong, the government could still blacklist you and you would never be allowed to have internet access again.

And if you don't even know what some of those things mean, then you might really be in trouble.

Europe is further along on this course than is the U.S. Opponents of the EU's "three strikes" law have specifically made pointed criticisms at 1) the presumption of guilt, 2) a disregard for personal privacy, and 3) the lack of judicial review or appeal.

Well, last night, a compromise seems to have been reached between the two sides. As Ars Technica reports, all parties have agreed to a new "Internet Freedom Provision" which has been signed off on by the Council of Ministers, the negotiators from the European Parliament, and the European Commission, and looks to go into effect next year.

The new Internet freedom provision still allows "graduated response" laws and even Internet disconnections, but it does set down a baseline that all countries must follow. According to the new provision, Internet sanctions may "only by imposed if they are appropriate, proportionate, and necessary within a democratic society." In addition, they can only "be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned… The right to an effective and timely judicial review shall be guaranteed."

At first glance, this seems like a very reasonable compromise. Unfortunately, there is one giant lingering elephant in the room. As the advocacy group, La Quadrature du Net, argues, the protection granted by this provision only relates to measures taken by governments, not private parties. As a result, private ISPs can still cut people off entirely from the internet without a presumption of innocence, regard for personal privacy, or any appeals process.

Clearly, that's a problem. The Internet Freedom Provision should thus be thought of as a positive first step in formulating a compromise solution to the problems of digital copyright infringement... but a first step only.


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