Cybernetic Cain: In the Eyes of the Internet Law, You Are Your Brother’s Keeper

CainLet’s review the two basics of modern criminal law:

  1. The law punishes you for your individual crimes, not the crimes of your ethnic, religious, or kin group. If your father kills someone, you don’t follow him to jail. (Usually.)
  2. The law does not take away your freedom or valuable property without giving you some sort of reasonable pre-deprivation hearing. (Think a trial, see Mathews v. Eldridge, 424 U.S. 319 (1976)).

I’m sorry to bore you with these mundane/obvious details, but it seems that various governments have forgotten these simple rules when it comes to crafting cyberlaw.

You might recall the Internet-banning HADOPI law that made the rounds in France before being defeated by the Socialists. That law sought to block users from the Internet if they had been accused (not convicted) of illegal file sharing. The Conseil Constitutionnel struck it down, holding that Internet access was a fundamental right.

At the time I noted that the French refusal was a set back for the film and music lobbies because the French plan was to serve as a working prototype for draconian copyright policies the world over.

Well it seems that the idea of summary IP execution has made its way across the channel. England, land of refined manners and strange smiles, is the new proving ground for Internet prohibition. According to a report from the office of Business Innovation and Skills and the Guardian, accused users would receive letters warning them of detected file sharing. If the sharing continued, the users' Internet access would be cut.

Interestingly, this proposal contradicts an earlier report from the government’s Digital Britain, which stated that flagged users would (at most) face ISP-controlled bandwidth restrictions. The rapid about-face has led some to speculate that the new policy was conceived as a personal favor after a meeting between Lord Mandelson (Secretary of State for Business, Innovation and Skills) and David Geffen (DreamWorks Triumvir). So at least we have a good guess where this policy is coming from.

But you might ask, “What’s so bad about this policy? These are repeat offenders! Let's cut off their thumbs!”

Ignore for a moment that none of these individuals would have received a trial or been convicted of a crime – let's instead focus on the collective punishment aspect of this plan. Since most families and many roommates share the same IP address, the ban amounts to a decree to “kill them all, let God sort them out.” You could be totally unaware of your sister’s proclivity for downloading Gossip Girl or your strange boss's tendency to download books about Kubla Khan. But when your ISP comes to cut your interwebz, you all are left in the dark.

My god. I think I’d kill someone. You should see how pissed I get when my roommates take long showers. Imagine the violence I’ll cook up for those that get my Internet snatched away.

"But wait," you say, "that’s just silly old England. We have this thing called the Constitution that protects our rights. We’d never do something so disproportionate as taking away someone’s Internet access."

Think again. Let’s set aside for a moment the courts' growing willingness to impose Internet bans on criminals. Instead, let’s ponder the chance that we might already be in negotiations to adopt similar policies of Internet prohibition for accused pirates. After all, the US has been negotiating the Anti-Counterfeiting Trade Agreement. Oh, you haven’t heard about that? That's okay, I can forgive you. Your ignorance is understandable, seeing as how the President of the United States flatly denied a Freedom of Information Act request for public disclosure of the documents describing our Internet policies. Yes, that’s right, in the interests of national security, you can’t know the protections we are signing away.

Not to worry though, the documents were leaked to Wikileaks. The documents, in the words of Wired, "suggest the proposed trade accord would criminalize peer-to-peer file sharing, subject iPods to border searches and allow internet service providers to monitor their customers’ communications."

So, an American import of the British/MPAA-RIAA plan no longer seems so far fetched. When the IP bans start coming down, get ready to read stories of brother slaying brother. Lord knows I'll be watching my file-sharing younger brother like a hawk. For without the Internet, I'd surely become a restless wanderer on the earth.

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He has no younger brother but wanted to end the post with a Cain and Abel allusion.)


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