We stand for a single Internet...

Reading the transcript of Secretary of State Hillary Clinton's talk on Internet Freedom is rather uplifting: "We stand for a single internet where all of humanity has equal access to knowledge and ideas".

"This freedom is no longer defined solely by whether citizens can go into the town square and criticize their government without fear of retribution. Blogs, emails, social networks, and text messages have opened up new forums for exchanging ideas, and created new targets for censorship."

"The freedom to connect is like the freedom of assembly, only in cyberspace. It allows individuals to get online, come together, and hopefully cooperate. Once you’re on the internet, you don’t need to be a tycoon or a rock star to have a huge impact on society." In short, you can get whuffie-rich online.

These words echo (and amplify) the strong words of Justice Stevens in Reno v. ACLU: "Any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox." Web 2.0 have since become the new forums of choice. This information is able to travel quickly, and viral posts and videos make their way quickly around the globe. Or so they should.

But freedom of speech is endangered, because free communication is sometimes stopped when traveling through borders: "Some countries have erected electronic barriers that prevent their people from accessing portions of the world’s networks. They’ve expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech."

However, "all societies recognize that free expression has its limits."

"Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes."

Does the last phrase refer to current debate over three-strikes laws such as the French Hadopi law and the UK Digital Economy Bill? Probably not, as the phrase would then have stopped after "internet." The Secretary of State is referring to people using the Internet to share their ideas which are not necessarily the ones of their government.

So governements should not have the power to cut the pipelines to censure peaceful political speech. We are still not sure whether they may use that power to cast a broad net in order to catch users downloading protected works.

Grandma, Poppies, HADOPI

When Frédéric Mitterrand, French minister of culture, defended the HADOPI bill in front of the French National Assembly in July 2009, he said: We all know the story of the grandmother who waters her grandson’s poppies, finding them very beautiful, not knowing that this plant is in fact hashish. We will not harm the grandmother!

Problem with that statement is that the HADOPI law creates a presumption of guilt if someone illegally downloads using an Internet connection. If the grandson downloads "I’m a thug", it’s Grandma who will be prosecuted. But there is no French law (so far) which creates a presumption that all hashish plant waterers are guilty, so in Mr. Mitterand's example, Grandma is indeed fine. But under HADOPI she will be prosecuted if the proverbial grandson illegally downloads using her Internet connection, one the the many reasons the HADOPI law should not have been passed.

HADOPI 2 is (Mostly) Constitutional Decided Conseil Constitutionel

France’Conseil Constitutionnel validated most of the HADOPI 2 bill yesterday, and the law should be promulgated very soon. We will have to see now how it will be implemented. Who will be the first judge to use an ordonnance pénale in order to prosecute an Internet user who has allegedly illegally downloaded protected materials?

Using an ordonnance pénale is constitutional: Article 6 establishes a procedure applicable to specific criminal offenses of infringement committed over the Internet (single judge trial and simplified procedure of the penal order). The Constitutional Council had already had a chance to decide this procedure complies with the Constitution .

It may be constitutional, but is it wise? Will it be efficient in preventing illegal downloading? The question of efficiency is essential, as we know that trade-off is a key concept to evaluate how the general public will welcome laws which are taking away some of their privacy.

Failing to Make an Internet Connection Secure Could Become a COA in France

The French government has been sending its observations regarding the referral for review of the HADOPI 2 bill to the Conseil Constitutionnel.

Here is an interesting quote from the document: It may happen that the Internet account holder does not acknowledge to have [illegally] downloaded, and does not secure his Internet access despite the authority [HADOPI] requesting him to do so. In this case, it is likely that no further investigation will be necessary, and criminal misdemeanor prosecution for gross negligence (négligence caractérisée) will be carried out.

Consequently, failing to make an Internet connection secure could become a cause of action for negligence in France.

October 21, 2009 update: It is so easy to surf on un-secured networks that many people could be falsely accused of illegal downloading…

French Representatives Request the Conseil Constitutionnel to review HADOPI 2

French representatives have requested the Conseil Constitutionnel to review the so-called HADOPI 2 bill, adopted by the French Assembly on September 22.

I have translated below some parts of the request, which can be found in French here.

The representatives are mainly concerned by the fact that the law punishes Internet users found guilty of gross negligence (négligence caractérisée), but this concept is too vague and thus violates the principle of legality.

Also it can be technically difficult to cut off only Internet service. It is possible in some parts of the French territory, and cutting off Internet service wouldn’t affect, say, telephone or television services, whereas in others parts of France, having one's Internet access cut off may leave you without phone nor television services.

The representatives wrote:

"In addition, it is equally obvious that the legislature did not consider your June 10, 2009 decision by which you took care to remind that 'attacks on freedom of expression must be necessary, appropriate and proportionate to the objective pursued.' But by punishing the offense of "gross negligence" by cutting off access to the Internet, it is nothing to say that the legislature has established a penalty obviously and manifestly disproportionate. It is indeed manifestly disproportionnate to sanction "gross negligence" - a concept whose vagueness is moreover incompatible with the principle of legality of crimes and punishments – by a measure that is a serious violation of a fundamental freedom -- cutting off access to the Internet. By creating this offense the legislature adds to the confusion and is losing sight of all proportion on the scale of penalties.

It is equally strange, constitutionally speaking, to establish by law a penalty which everybody knows that the implementation or not will depend on technical realities. In other words, as has been stressed by the ARCEP, that bundled or unbundled services do not have the same consequences in cases of suspension of Internet access. Indeed, in non-unbundled areas, it will be technically difficult to maintain IP telephony if internet access is cut. Therefore, it is manifestly contrary to the principle of equality before the law to establish a criminal penalty to which the implementation will not be the same across the country and depends on contingency techniques. If by some miracle you validate the procedural devices submitted for your consideration, it is nevertheless assumed that this law could come into force before the day the penalty may be applied uniformly throughout."

French Assembly Voted HADOPI 2

The French Assemblée Nationale passed yesterday the HADOPI 2 bill by 285 votes to 225. Opponents to the bill already announced that they will ask the Conseil Constitutionnel to review it.

Article 2 of the adopted text would insert an article 495-6-1 in the French IP Code and authorize the use of an ordonnance pénale (criminal order) procedure, in order to prosecute Internet users using their connection to download protected material.

Pursuant to article 525 of the French criminal procedure Code, no preliminary hearing is necessary in this case: “The judge rules without a prior hearing by making a criminal order; this either provides for a discharge, or imposes a fine together with, where necessary, one or more of supplementary penalties applicable. If he considers that an adversarial hearing would be useful, the judge returns the case file to the public prosecutor for it to be prosecuted with the ordinary procedural formalities.”

Article 3 ter A (nouveau) of the HADOPI 2 text also adds an article L. 335-7-2 to the French IP Code: “In order to impose the suspension penalty provided for in Articles L. 335-7 and L. 335-7-1 and to determine its duration, the court takes into account the circumstances and severity of the offence and the personality of its author, and in particular his occupation or social position, and his socio-economic situation. The length of the sentence must balance the protection of rights of intellectual property and respect the right to express himself and communicate freely, especially from his home. "

Will it really be possible to find out who is the perpetrator of the illegal downloading? I am not my IP address! I do not block access to my computer with a lock! Whoever used my computer and/or my Internet access is not necessarily me… Digital Identity and Real World Identity are not always the same... Using the criminal order procedure, in cases where one is not even sure who the criminal is? The French legislators may be a trifle too optimistic.

About a New French Crime...

Professor Cédric Manara wrote an entry on the Dalloz blog about a new crime, created by the June 12, 2009 law (the so-called HADOPI 1 law). Pursuant to the article L.335-3, 3 of the French IP Code, capturing, partially or completely, a cinematographic or audiovisual work in a movie theatre constitutes counterfeiting.

According to Mr. Manara, only recording made in a closed movie theatre are illegal, as the French « salle de spectacle cinématographique » only designates a closed area. That will not help a drive-in movie theater revival…

Also, Mr. Manara notes that even a partial recording is a crime, and wonders if it will be necessary to check at the end of each show if the viewers had not recorded a brief excerpt of the movie on their smartphones… Mr. Manara adds, the movie theatre owners themselves could be implicated, if they use a surveillance camera inside the theatre for security reasons…

HADOPI 2 could be voted today in France...

The so-called HADOPI 2 bill may be voted today by France’s representatives, at the Assemblée Nationale.

HADOPI 1 had been censored in June 2009 by France ‘s Constitutional Court, because the HADOPI, “Haute Autorité pour la Diffusion des Œuvres et la Protection des droits sur Internet,” the “High Authority for the diffusion of works and protection of copyright on the Internet" had been given the right to shut down Internet access, if after two warning, the Internet user persisted in using his Internet access to download protected materials.

Undaunted, the French government presented almost immediately a new bill, which would give only to a judge the power to order Internet access be shut down.

But there are many more flaws in the HADOPI 2 bill… Some representatives have pointed out that it is difficult, if not impossible to secure one’s Internet connection. Should a cyber-pirate use an innocent user’s Internet connection to download protected works, the user would be punished, as the bill targets the holder of the Internet account, who may or may not be the one downloading. And we are not even talking about the chaos the implementation of this law could create on happy families…

- Who downloaded last night “How to cut down a cherry tree”?
- It’s me Daddy…

Hadopi and Privacy

In France, it is the Conseil Constitutionnel which has the power to rule on the conformity of the law with the Constitution. It examines the law after its vote by the Parliament, but before its promulgation. Pursuant to article 61 of the Constitution, only the President of the Republic, the Prime Minister, the President of the National Assembly or of the Senate, or 60 deputies or 60 senators have the power to take to initiative to ask the Conseil Constitutionnel to rule on constitutionality.

60 deputies have started this procedure on May 19, asking the Conseil Constitutionnel to rule that the Internet and Creation law is unconstitutional.

In point 3, the deputies points out the dangers for the privacy of the users that this law would entail. They point out that the way the law conciliates the protection of copyright and the protection of privacy is unbalanced. Indeed, in order to be able to strike users downloading illegally material protected by copyright, their activity on the web has to be monitored, including, according to the deputies, their email messages, considered private correspondence under French law. The law does not fix “clear and precise limits of the surveillance of the Internet that the law would imply.” The legislator has “to set limits on the technical used for monitoring the network in application of the law.”

The deputies are particularly concerned that the law does not explain clearly how the IP addresses of the users will be collected, even thought they will be collected by privates persons (article L.331-24 of the law.)

Take me to the European Parliament: Is French Three Strikes Law Out?

The European Parliament reinstated yesterday Amendment 138 of the “Telecom Package” that had been rejected by the Council, which would prevent government to restrict user’s access to the Internet without prior ruling by the judicial authorities. According to the initial wording of the amendment “no restrictions may be imposed on the fundamental rights and freedoms of end users, without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights", but it was replaced by "and the right to a judgement by an independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the ECHR."

France had fought hard against Amendment 138 which would protect users’ rights against the three-strikes sanctions that is at the core of the hotly debated French Internet and Creation bill. The government did not succeed of having it voted on April 9, and a new version of the bill is currently debated by the French Parliament. If voted, article L. 331-25 of the French IP Code would allow that the Internet access of a customer having infringed his obligations can be suspended “for a period of two months to one year with the impossibility for the subscriber, to subscribe for the same period another contract for access to a communication service to the public online at any operator.”

The law created the HADOPI, the « Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet » (High Authority for the Diffusion of works and protection of rights on the Internet), an independent Administrative Authority. The HADOPI is in charge of enforcing the « three strikes and you’re out” law. It would fist send an email to the user downloading protected materials, then a registered letter, before finally made the decision to cut access for two months. But the HADOPI is not an “independent and impartial tribunal established by law and acting in respect of due process in accordance with Article 6 of the ECHR" so, according to amendment 138, has no right to cut Internet access.

So, as of today, the future of the HADOPi bill is bleak. Did I hear a sight of relief?

French Version of the the DMCA Takedown Notices

The French “Internet and Creation” bill proposes to add an article L. 336-3 to the French IP Code. This article would oblige the client of an ISP “to ensure that [his] access is not being used for purposes of reproduction, representation, or making available to the public works or objects protected by copyright or a neighboring right without the permission of the holders of these rights”.

This system is similar to the DMCA takedown notices, and the purpose of the bill is, of course, to try to discourage illegal music and films downloading. Yet, the scope of the article is very broad. Imagine accessing a blog that would illegally reproduce pictures of the latest family trip to Grandma, stored on the family computer hard drive, but used by little Billy without Big Sis permission.

The bill also creates a new independent administrative authority, the High Authority for the dissemination of works and protection of rights on the Internet (Haute autorité pour la diffusion des œuvres et la protection des droits sur internet), that would be in charge of making sure that the dispositions of the article L.336-3 are respected.

What gives? According to the riposte graduée the bill proposes to put in place, the ISP client would risk, after several warning of the High Authority, to have his Internet access shut down, three months to a year, while still having to pay the ISP invoice (Art. L. 331-28), a more enviable fate than the one he faces under the current of article 335-2, §§1 and 2 of the Intellectual Property code: “Any edition of writings, musical compositions, drawings, paintings or other printed or engraved production made in whole or in part regardless of the laws and regulations governing the ownership of authors shall constitute an infringement. Any infringement shall constitute an offence.

Infringement in France of works published in France or abroad shall be liable to a three-year imprisonment and a fine of € 300.000.”

The High Authority would also be in charge of creating a database of all the persons that have been found to infringe copyrights, and thus had their Internet access cut off.

The bill, already voted by the Senate, will be discussed at the Assemblée Nationale early next month.