New Zealand Three Strikes Law Debate Heats Up

The Law Society and lawyer Clive Elliott have come out to support a three strikes law saying that the punishment is no different than a driving penalty and that a punishment like this is not unusual. Meanwhile, Internet NZ has come out publicly against a three strikes law saying that disconnection is way out of line for the offense committed and that disconnection should be removed.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

More submissions and commentary are coming out of New Zealand’s Commerce Select Committee. Late last month, critics like the Creative Freedom Foundation said that disconnection from the internet is like cutting off someone’s electricity, postal and phone service. Not to far earlier, Finland did make an internet connection a fundamental human right.

Supporters of Three Strikes

The debate certainly hasn’t calmed down since then. New Zealand news site Computer World NZ profiled two supporters of a three strikes law. In a submission to the Society’s submission to the Commerce Select Committee, the Law Society has asked for provisions eerily similar to those seen in France with regards to the three strikes law.

“During this period a subscriber can easily open an account with another ISP and immediately continue illegal file sharing,” says the Law Society’s submission. “There should be a power to allow the Court to order that the account holder cannot open an account with another ISP during the period of the suspension.”

The provision that the suspended user is blacklisted from other ISPs is a lot like what is seen in France’s HADOPI run three strikes law. HADOPI, is currently mired in controversy and red tape and could possibly resort to mandating that spyware be installed on everyone’s computer to ensure innocence can be argued in court. How far things have fallen for HADOPI in a year since its passage, but HADOPI did effectively show how ineffective a three strikes law really is when it is put in to practice. In New Zealands case, it could easily be a case if making the same mistakes and expecting a different result should it decide to model itself after France and try a three strikes law in the first place.

ComputerWorld also got the opinion of lawyer Clive Elliott on the subject – also a supporter of a three strikes law. He argued that disconnecting someone from the internet for copyright infringement is not unusual – never mind the fact that France has yet to enforce it’s three strikes regime and the only other country that has a law like that is South Korea. Maybe some supporters might think that what’s good for the Republic of South Korea is good for New Zealand. Really, where else in the world is a three strikes law anyway?

Elliott continued with his argument:

There is a lot of talk about internet access being a human right, but even if it is, the law is still entitled to abridge such rights as punishment for a sufficiently grave illegal act, Elliott says.

In some countries, internet access is a human right. Is there any evidence to support how “grave” copyright infringement really is? There are studies commissioned by the copyright industry that found interesting ways of trying to make online infringement sound much more severe than it really is. In some cases, certain organizations cried foul over infringement while quietly enjoying record breaking profits.

Here’s another argument by Elliott:

If you commit a serious driving offence, he says, you are not just banned from driving the vehicle in which the offence has been committed; you are banned from driving any vehicle. If you are guilty of harassing your domestic partner, you may be served with an order which will also stop you from having contact with your children, even though you did not offend against them.

Others have already pointed out that this is a false comparison because copyright infringement is a civil issue. Serious driving offenses are often a criminal issue. I would go further about how this is a false comparison because if you are tried for a serious driving offense like vehicular homicide, you are innocent until proven guilty. Initial accusations of copyright infringement are guilty until proven innocent. There’s more leniency in the system in terms of assumption of guilt with killing someone with your car than there is for uploading bad pop music.

Perhaps a great sign that supporters of three strikes really haven’t thought through there arguments is this:

In any case, Elliott adds, what the Law Society suggests is not a complete ban on accessing the internet, just a ban on holding a personal account. The person under such a penalty can still go to an internet café, “to go on Facebook and all those other things you do on the internet”.

If that’s the position, I honestly don’t see the point of a three strikes law in the first place.

Internet NZ

Internet NZ has also posted comments based on their submission to the government. In a press release, the organization has called for removal of the provisions that ask for disconnection:

“A disconnection penalty is a response way out of line with the harm caused by infringing file sharing. People are using the Internet for a huge range of important economic and social tasks. Cutting off their accounts is akin to banning someone from using the postal system because they were caught posting copied music CDs.

“Nobody would think that was fair. As a matter of good law, penalties for a wrong should be proportionate. The rest of the Bill, with notices and financial penalties, is reasonable. Account disconnection is not.

“In pragmatic terms, disconnection is ineffective because people generally have Internet access from a range of accounts. They also would easily be able to sign up with another ISP with no penalty.

“Disconnection is both wrong in principle, and likely to be ineffective. These two factors together indicate it should be removed as a penalty.

“Doing so would allow the role of the District Court to be removed from the legislation, leaving it to focus on serious crime and saving the taxpayer money.

Exactly. The court system doesn’t need to be tied up with thousands of cases of people having their internet connection potentially disabled. The courts need to focus on more serious issues like drug trafficking, assault, gang related crimes and many other crimes that actually negatively impact society.

Other Thoughts

The industry loves to push for a three strikes law. Often, though, those little details and specifics wind up being the Achilles Heal. How does one avoid fraudulent accusations? How does one prove their innocence? What role does the ISP play in all of this specifically? Is this constitutional? Is a court involved? How much court time will be tied up as a result? Can a three strikes law apply to streaming sites? What about private BitTorrent sites? Is there any thought to one-click hosting? How does one settle what the US likes to call “Fair Use” issues? What about the Public Domain? Do circumvention “devices” count? How does this affect archival purposes? The list goes on and on and on.

As HADOPI is finding out the hard way, a three strikes law, when you look at the details, is really simply unworkable in practice.

Drew Wilson on Twitter: @icecube85 and Google+.

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