Sunday, May 10, 2009

France and Due Process : the case of HADOPI.


What would you say if a country decided to create a state agency that would have both judicial and police powers and no accountability?

What would you say if this new state agency could decide to cut off internet connections after 3 warnings without proof or trial simply because your IP address has been pointed out to this high authority by a business group that holds Copyrights and accuses you of illegal downloading?

What about if there was no substantial burden of proof on your accusers to show that you committed the alleged piracy?

What about if you were unable to contest the decision before the connection is cut off and if the contestation did not lead to a suspension of the sanction anyway?

What if there was no appeals process for addressing those piracy accusations anyway?

What if you would not only be cut off from the internet but you’d still have to pay your internet connection to your provider for up to one year?

It sounds like China could be doing this, but, no, it is France, the country of “freedoms and human rights” that is trying to pass this anti-freedom bill called HADOPI (name given to state agency in question). This is of course totally contrary to the way justice normally works in France, where you are supposed to be innocent until proven guilty, and where, as in any democracy, the burden of proof is on the accuser.

But then, if you read the details of this bill, you quickly see that the law, if passed, would open the door to loads of issues that would make it hard to enforce anyway – both technically and legally.

Once more the incompetence of this government blows my mind - they don’t seem to have figure it out all those problems before – not even the technical problems. Someone in this government must know that there are always technical alternatives to circumvent the law.

Finally, there is Europe, and that’s no small problem to Sarkozy.
On Wednesday, the European parliament voted in favor of an amendment to the Telecoms Package (by 404 votes, – 57 ‘no’ and 171 abstentions) which goes as follow:

“Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a “prior ruling by the judicial authorities,” notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”

The problem for the Sarkozy government is that they intended to use a state agency instead of regular judges to cut off “a thousand connections a day” (which would, by the way, leave only 25.20 seconds for the three members of the HADOPI to make a decision). Regular judicial process, on the other hand would not only delay the mechanism (with already overburden judges as it is), and it would also be more costly. That would be the price for due process – a concept used in England since Magna Carta in 1215.

The Telecom Package with the new amendment must still be approved by the European Council of Ministers and France may block it. If they do, it will be another showdown between Sarkozy and the rest of Europe as it will generate delay for a Telecom law that addresses great economic interests. Not something worth a fight given all the other problems generated by the law.

But then, you never know with Sarkozy, he’s so stubborn and cocky that he can be really idiotic about it. That would not be the first time!

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