French council rules Internet access a universal right (while US lags behind)

by Jesse Kirdahy-Scalia, Open Media Boston

The French Constitutional Council's recent decision against that nation's "HADOPI" Internet copyright law, which required ISPs to disconnect users after three purported copyright violations, naming Internet access a universal human right and bringing France into alignment with the rest of the European Union, which already rejected such "three strikes" laws last month.

The Constitutional Council's June 10 decision (original French in PDF format) referred to the 1789 Declaration of the Rights of Man and of the Citizen, which enumerated universal rights—that is, unalienable rights which belong to a person as a matter of their human nature, rather than as given to them by a government. As such, these rights are valid in all times and places, independent of any governing body.

In its decision, the Constitutional Council wrote that freedom of Internet access is an essential tool for participation in democratic life and expression of ideas and opinions, and concluded such access is implied by Article 11 in the Rights of Man, which states that freedom of communication is "one of the most precious of the rights of man," and provides that citizens may "speak, write and print with freedom." The decision further found the HADOPI laws placed an unfair burden of proof on users to demonstrate their innocence, which is opposite to Article 9 of the Rights of Man, which states "all persons are held innocent until they shall have been declared guilty." Finally, the Constitutional Council concluded the High Authority created to enforce the eponymous HADOPI should have the power "to warn the downloader has been spotted, but not punish him."

This decision brought French anti-piracy legislation into alignment with the European Parliament, which rejected similar three strikes legislation in its fifth and final vote, and echoes European Commissioner for Information Society and Media Vivian Reding's statement that "Internet access is a fundamental right such as the freedom of expression and the freedom to access information."

Such strong language in support of users' surely made many a geek tweet with joy on reading the news. And for good reason; not only was the destructive and unreasonable HADOPI law declared unconstitutional, the Constitutional Council implicitly concluded that Internet access is a universal human right, one which allows users to participate in civil society, and which is unalienable from our human nature. Did you get that? On June 10, 2009, access to the Internet—that massive, real-time, decentralized system for the collection and distribution of the heterogenous, controversial and sometimes banal human experience—was accepted as a right, unalienable from the our humanity. This is the best example yet of how the Internet has matured, and how essential to our species it has become.

And with that recognition comes the responsibility to provide the universal right of Internet access to those who want and need it. It is in this capacity that France has done quite well (demonstrably better than the United States, for certain). The 2008 Innovation Technology & Innovation Foundation Broadband Rankings lists France fifth among OECD nations in broadband penetration, speed and price. The United States is listed fifteenth, down from fourth in 2001. According to the ITIF's full report, France achieved this by eschewing free market based solutions, and instead allowing a government-owned bank to make reduced-rate loans to local municipalities for broadband development starting in 2001, and then in 2003, allowing local authorities to become telecommunications operators, themselves. These actions have moved France higher up the ITIF rankings year after year.

Compare France's solutions to those of the United States, which seek telecommunications deregulation and market solutions. The Telecommunications Act of 1996, for example relaxed restrictions on concentration of media ownership and removed requirements for telcos to build out their networks. These actions have reduced US broadband penetration and speeds relative to other OECD countries, while at the same time, keeping prices high.

More recently, broadband provisions in the American Recovery and Reinvestment Act of 2009 (popularly referred to as Obama's economic stimulus bill) appropriate $4.7 billion in funding for "community-oriented networking needs," including operations that provide access to unserved and underserved areas; education and training for schools, libraries and hospitals; and broadband mapping. According to a report by the Baller Herbst Law Group, these funds are available to virtually any entity, including local municipalities and nonprofits. Private corporations and telcos are also eligible, but only if their projects are determined to be in the public interest.

Such initiatives demonstrate the current administration's awareness of our country's broadband problem, but without increased regulation on media ownership rules, requirements for network upgrades and buildout, and legislation that formalizes network neutrality, making it illegal to provide preferential access to certain types of content, we will proceed to slip lower in international broadband rankings. More to the point, if we continue to allow corporate interests concerned only with profit to control the quality, reliability—and probably the content—of our Internet, we may forfeit our universal rights to forge connections with one another and create community online.

article originally published at Open Media Boston.

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