The French Senate has once again approved a reworked version of the country's controversial "three strikes" bill designed to appease the Constitutional Council. Instead of a state-appointed agency cutting off those accused of being repeat offenders, judges will have the final say over punishment. [
The French Senate has approved an updated version of the "three strikes" online copyright infringement bill aimed at taking repeat offenders offline. The approval comes exactly one month after the country's Constitutional Council ripped apart the previous version of the Création et Internet law. The nouveau version of the bill attempts to get around the constitutional limitations by moving the final decision to cut off users' Internet accounts to the courts.
Originally, Création et Internet set up a High Authority in France that would oversee a graduated response program designed to curb online piracy. Rightsholders would investigate, submit complaints to the High Authority (called HADOPI, after its French acronym), and the Authority would take action. Warnings would be passed to ISPs, who would forward them to customers; after two such warnings, the subscriber could be disconnected and placed on a nationwide "no Internet" blacklist.
The first version of the bill was foiled by a handful of Socialists who voted it down, but the law managed to pass on its second attempt in May of this year. The law still had to be scrutinized by the Constitutional Council, however, and this was where it ran into trouble. The graduated response program was nonjudicial, setting up a separate "administrative" authority, but it performed an essentially judicial function. The sanction proceedings had a presupposition of guilt—the burden of proof was on the Internet user to show that he or she had not been pirating.
The Council focused primarily on this aspect of the law, emphasizing that everyone is presumed innocent until proven guilty under the Declaration of 1789, and that this principle applies "to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature." The Council's censure indicated that disconnections must be treated like court cases and not just administrative proceedings. As a result, the law was shot down.
Bring in the judges
Not content to let the idea die, President Nicolas Sarkozy's administration reworked the law in hopes of making it amenable to the Council—instead of HADOPI deciding on its own to cut off users on the third strike, it will now report offenders to the courts. A judge can then choose to ban the user from the Internet, fine him or her €300,000 (according to the AFP), or hand over a two-year prison sentence.
Those who are merely providing an Internet connection to dirty pirates can be fined €1,500 and/or receive a month-long temp ban from the online world. (A group of French hackers has already begun to work on software that cracks the passwords on locked WiFi networks so that there's an element of plausible deniability when law enforcement tries to go after home network owners.)
The Senate approved this version of the bill with a vote of 189-142 this week, sending it to the National Assembly for final passage.
While certainly an improvement, even the new version of the bill cannot escape criticism from open Internet groups, who still believe that the system makes it too easy for non-judicial entities to enforce punishments. In a post to its website, La Quadrature du Net wrote that those who approved the bill are trying to reduce the courts to nothing more than a rubber stamp and that the bill mocks the values of the constitution. The group called on other legislators to denounce the bill when it comes to a vote later this month.
