I believe that disconnecting people from the Internet is simply unenforceable. It is not possible to observe who connects to the Internet, unless you are actually physically watching. Being disconnected is not at all like enforcing a law such as a driver license suspension. For one thing, a police officer can tell at a glance who is driving a vehicle. On the other hand, when your dealing with Internet traffic, you don’t know who is at the keyboard.
Furthermore, disconnecting people from the Internet raises some interesting conundrums. I am unclear whether disconnection in French law just involves banishment from a specific ISP, or total and complete disconnection. For the sake of argument, let me focus on being banned from using the Internet with1 ISP for a period of time.
Let me walk you through a couple interesting scenarios. In these cases, the people who are disconnected have actually committed copyright infringement, which is a very faulty assumption in the real world. In the first scenario, imagine a teenager who gets disconnected for repeatedly sharing music. He and his entire family connect to the Internet using one computer and one ISP. The teenager comes home. He’s got a research paper due soon and would like to use the Internet to do some research in order to enhance his work. Let us say for the sake of simplicity that she still has full use of the household Internet connection. In the interests of her son’s education, she allows him to do so. What she has just done is broken Three-strikes law. The teenager does the research he has promised and logs off from the family computer. Let’s say that the penalties for breaking three strikes laws are severe, perhaps even criminal. It is likely that the mother is also legally liable for letting her son reconnect in the first place. It is a virtual certainty that her son’s use of the Internet goes undetected. The ISP has no way of determining who is physically using the IP address at that time. Law enforcement cannot track the physical origins of a packet of Internet traffic without putting in place pervasive surveillance monitors in the real world. The webmasters of the websites the teenager accesses have no way of knowing the identity of those who use it unless that information has been volunteered. No matter how severe the penalties are, there is nothing the law can do to stop the boy from using that connection yet again. So long as he does not file share, his actions will go unpunished. The only way to ensure the boy does not connect at home is to place him under physical surveillance while he is there. Anyone care to mension Big Brother here? If you think the mother will withhold any kind of access from her son for educational purposes by placing criminal liability on her, you’d be dead wrong. She knows that her son’s Internet useage is virtually unlikely to go unpunished. Besides, there are plenty of places outside the home her son could use if he wishes to continue sharing songs. As Internet connectivity grows increasingly ubiquitous, the more ways he can find.
Let us take a look at a second scenario. An employed woman is disconnected from the Internet because she is caught sharing books. She runs her own home-based business. It had been thriving prior to the connection. She and her family connect via one ISP. She maintains one computer for work use, and another for her own personal use. Her husband and young daughter do not use the Internet. She uses the Internet in every facet of her business, from selling her product, communicating with her customers, advertising, etc. Without the Internet, her business grinds to a halt. Her product does not have enough market share to sell locally. She lives in a small town and is pregnant. She is now unemployed. Her parents are living overseas. Now that she is unemployed, she does not have enough money for long-distance telephone charges. Skype and Facebook had been crucial to maintaining there very close relationship. As she is the only Internet user, the entire household is disconnected. She cannot bare the thought of losing contact with her parents. After a month of disconnection, she realizes that she desperately needs the Internet to help her find a new job. Her husband has compassion for her plight. He goes to the same ISP and opens an account for himself. He has no plans to use it. He gives his wife complete access to the computer and the Internet connection. Here again, if she does not attract attention to herself, her activities will go unpunished. Here again, only extensive, Big Brother surveillance would keep her away from the Net.
I realize that in both scenarios, reconnecting to the Internet would be impossible if every person living in those two households had been barred from accessing the Internet. This raises some very interesting human rights questions. Should innocent family members or coworkers suffer the same penalty as the one accused of copyright infringement? Should third parties be liable for allowing an unauthorized person to connect to the Internet, whether or not they are aware of such an act taking place? If so, what measures do you think third parties would put in place? Aside from human rights, just how much of a headache do you think upholding three strikes laws will be for law enforcement?
The scenarios will only get crazier if any country mandates a complete and utter disconnection from the Internet. It can be accessed in so many ways. The list will only continue to grow. The more ubiquitous the Internet becomes, the more integral it will be to all of us.
I believe that disconnecting someone from the Internet is about as enforceable as forbidding someone from reading books after being caught with pornography. Three strikes laws will do little to halt online piracy, as they can be so easily circumvented with little risk of being caught.