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French Three-Strikes Law Ruled Unconstitutional
An anonymous reader was one of several to write with this news: "The French 'Conseil Constitutionnel' just ruled that the recently voted 'Hadopi' law, which enforces a 'three strikes and you're out' system, is actually unconstitutional [article in French; here's an English-language article at Ars]. They mainly make two points: 1) They argue that removing Internet access is equivalent to hindering a person's freedom of speech, and as such can only be decided by appointed judges. This removes all punitive power from the administrative body supposed to enforce the three-strikes rule; all it can do now is warn you that 'they're watching you.' 2) When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."
With this and the Pirate Party winning and EU seat, great news. Bad week if you are trying to force your failing business model to stay relevant like the RIAA (Sony, Warner Bros, Universal, and EMI).
Sorry Big Media Companies (tm), find another (legal) way to protect your dying business model. Or, better yet, adapt to the new reality...
It sort of makes sense, when you think about it. Why should the courts cede power to a non-judicial "administrative body" to rule against people. Stands to reason the courts would like a monopoly on those types of judgements.
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No. It's proof they have the weight of the constitution. That's different from ethics. Don't let this delude you into thinking that any and all forms of p2p are ethical.
lets hope that (the world) takes this further and embraces the right to encrypted speech as well as free speech.
you know what I'm referring to. those that listen in, just because they're too bored or unable to find the real 'bad guys'.
if internet access is a 'right' then the ability to communicate without some 3rd party listening in should also be a right.
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What I find interesting is the spin on privacy. Here in Canada, our privacy law is one of the reasons why file sharing has been hard to crack down on. The ability to remain anonymous and retain your privacy rights blocks most ISP's from packet-sniffing on behalf of 'special interest groups' - it also requires a court order: the judge will ask 'what proof do you have' and then ask these groups to explain how the gathered that proof without violation of Privacy laws. Even the current 'throttling' may be violating my privacy of internet usage as it would prove my ISP is scanning and reading my traffic information - which is a violation of my privacy rights of internet usage.
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"They argue that removing Internet access is equivalent to hindering a person's freedom of speech"
I would much appreciate if US Congress took this to heart and forced ISPs to stop the anticompetitive behavior. Sure, if these corporations really want to charge exorbitant amounts for their top-tier services, that's their right as a business. But there is little reason to have such price gouging and consumer-abusive practices and horrible, out of date service. Yes, we have disadvantages like large rural expanses and suburban sprawl, but I would like to finally see some legal teeth put in place to get this country to where it should be.
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Yeah, unfortunately our three branches system lacks an entity charged with removing laws with no effect.
The courts won't do it. Congress doesn't care. The executive likes them because they can threaten people with them, or ruin someone's life with them, then drop the case before it gets to the court and is thrown out.
A fourth body, who job it was to review all laws, and propose a list each year (based on criteria like "law on the books for a decade with no convictions based on it" or similar) that would be automatically stripped from US code unless congress and the president specifically re-approved and re-signed them.
That should be one of congress's jobs, but they have no interest in spending time on "old business".
It doesn't hurt to be nice.
The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.
Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.
In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors.
Who does the blame lie with for these circumstances? The ISPs, or the city government? Who is enforcing the monopoly? Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?
The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.
This isn't really a problem is the government would stick to their roles and follow the constitution. The constitution says they have to swear an oath to uphold and protect it as well as making it clear that all laws have to be in accordance with it. I suspect the founders assumed that the people making laws would have the limits placed on the constitution and that they would only do what they were allowed to do by the constitution instead of ignoring it or claiming it's alive and only means what they want it to mean.
Anyways, the system was already built in but we are no longer following the system close enough.
I agree. Currently outdated and useless laws end up on the books because the problem it was designed to address either isn't there anymore or because another law addresses it more effectivly. The end result is often someone claiming to be innocent and ending up going to court with 15 charges over the same act because the prosecutor hopes the jury will get frustrated and pick on. It's unfair to a proper defense and unfair to the truly innocent.
In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service.
What right does the government have to enforce such a condition? If I tell the mafia that I'll only deal with them if they exclude my competitors from their black market, am I to blame for the black market, or is the mafia?
Of course, if a community of property owners all agreed and signed a contract permitting exclusivity on their properties to one ISP, then they should be bound to that contract. It would have been foolish of them to sign such a contract without some exceptions in case the ISP tries to screw its customers or otherwise degrade service.
To be fair to the submitter, the phrase "three strikes and you're out" has been used for a while to describe this law. I'm not sure who started to.
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When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts.
The difference is that three-strikes laws in the US (at least the ones I've heard about) are about three convictions by a court, not three accusations by a private company. I'm not saying I agree with any three-strikes laws in the US, but at least they do go through the judicial system.
unless specifically re-approved
So once a decade someone passes an omnibus bill containing all the existing legislation. They'll justify it based on just one out the 50,000 laws set to expire, and say "This one is important, we can't let this go... and there are many more like it. Lets renew all of them just to be safe... thinkofthechildren! terrorists. 9-11. 9-11.
I wish I had mod points right now.
There really does need to be a "sunset law" for all laws, a "fourth body", or even one committee in congress that focuses on repealing or revising outdated laws in national, state, and local governing bodies.
There really is no reason for whaling to be illegal in so many land-locked US states.
Actually, it isn't vague at all.
Really?
Is prohibiting personal possession of a few ounces of marijuana "necessary and proper" for regulating interstate commerce? I think it's not. Congress, The President, and The Supreme Court thinks it is. Who's being unreasonable?
Why did the Supreme Court order a rehearing of Brown v. Board of Education and related cases on the grounds of determining what was intended by the 14th Amendment, only to not reach any real conclusion? ("This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.")
Is capital punishment "cruel and unusual"? What about for witchcraft (for which at least one person was hung around the time of the nation's founding)? Counterfeiting (for which someone was hung in 1822)?
Do the Bill of Rights apply to the states too? (My question is really "did they apply before the 14th amendment" since that's the basis for most of the incorporation.) What in the 5th amendment indicates that it is only a restriction on the federal government? I think nothing, and would argue that you don't need the 14th amendment to apply those restrictions to states. SCOTUS (in Barron v Baltimore) disagreed. Who's being unreasonable?
What exactly is freedom of speech after all? After all, the Bill of Rights leaves nothing to interpretation seemingly -- "Congress shall make no law ...or abridging the freedom of speech, or of the press" -- yet libel and slander laws are basically not in question, nor are copyright laws, and the 1798 congress even passed the Alien and Sedition acts, so clearly even the founding fathers didn't agree on what the Constitution meant (or at least didn't respect it).
I other words, the constitution itself was supposed to be the exclusive list of what the government was allowed or required to do where the bill of rights was the most obvious concerns over potential abuse.
Except that the Constitution doesn't otherwise prohibit a lot of the activities that the Bill of Rights prohibits. For instance, without the 5th amendment, why would presuming guilt in a trial of someone accused of being in violation of a federal law be prohibited?
Many of the Bill of Rights's restrictions are necessary even without the sort of twisting of the loose interpretations of "necessary and proper" and stuff like that which has allowed the federal government to expand in power over the decades.
As the saying goes: "Freedom isn't Free." It takes someone standing up and defending freedom. Sometimes that is on a battlefield with a gun. Sometimes its in a jail cell waiting for a court date.
Agreed.
Yet it would be nice if there were a way to bring a constitutional test of a law to court without having to bet your life, fortune, and sacred honor to do it.
After all, the congresscritters can pass as many unconstitutional laws as they think they can get away with just by doing a few hours of office work - over and over again. Why should it be drastically more expensive, hazardous, and time-consuming for us to undo their work when it is out-of-bounds?
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Which is a MAJOR problem. You have to knowingly break the bad law and then take it to the Supreme Court on your own dime. If they disagree with you, you go to jail.