Hey, When Did This Slope Get so Slippery? The Danger of Self-Surveillance in Three-Strikes Internet Laws

I recall a Twilight Zone episode with a great twist: a man, in order to win a bet that he could stay quiet for an entire year, has had his vocal cords severed. The idea being, it is particularly gruesome to imagine a human being rendered mute for money. Sadly, this episode has not aged terribly well: the obscenity of modern three-strikes Internet laws takes any sting out of the twist ending.

One of our allies, New Zealand, is considering a three strikes Internet termination plan. Another ally, France, has already passed such a measure – HADOPI, but can’t seem to enforce it (legally). While I’ve written about the lunacy that is HADOPI, I thought our friends down under might be interested to learn of the hideous side effects of swallowing the Internet Execution program.   

I’ve already written about France’s ill-considered HADOPI law, which mandates termination of accused pirates. Supporters of HADOPI have noted that there is at least a five-minute hearing before the line is snipped. In order to make these hearings more efficient, the French government has considered getting into the spyware business.

In order to defend yourself from an accusation of copyright infringment (and avoid the resulting digital execution), you will need to provide a record of your internet use. The government would make available surveillance tools that users would need to install in their machines. The government has asked that the software include:

  • the real time observation of protocol traffic;
  •  analysis of configuration files, including static analysis of  the programmes installed and the  router, and dynamic analysis of the use of the connection;
  •  logs of all activity on the Internet access  - including activation /deactivation, modification of any security profiles -  to be kept for a year;
  •  a system of alerts warning users if they are about to use  a P2P connection: for example, "You are about to download a file using a P2P protocol - do you want to continue?".

So, in order to protect yourself from losing your Internet, you need to offer up some of your privacy? How delicious. There was an old woman who swallowed a fly. . .  A three-strikes policy can usher in a regime of “voluntary” self-surveillance. You don’t want to provide the court with your Internet records? What have you got to hide?

But I figure that many of us would do pretty much anything to keep our Internet in the face of false accusations of infringement. Despite what three strikes proponents (read: friends of the Entertainment Industry) claim, the Internet is not some trifle.  Internet access, or the lack thereof, implicates job training, education, access to government resources, and self-expression. Severing an individual's connection seems akin to mutilation or exile. 

The morale of the story is: when you put in place a system with enormous consequences and little-to-no due process, individuals will take measures (however unpleasant) to protect themselves from arbitrary punishment. Between plans mandating that users password protect their wifi and record their own Internet use, we have seen a moment to an online copyright regime of guilty until proven innocent. With three strikes looming in New Zealand, and the hints of a three strikes plan in the ACTA negotiations, we may soon find ourselves sacrificing our rights in order to safeguard our basic necessities.

(Andrew Moshirnia is a third year student at Harvard Law School and a CMLP blogger. Somewhere beyond him, a wheel was turned and his number came up black thirteen.)


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