Squaring the Net, op-ed by Christophe Espern

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The French parliament will soon debate a draft law “about the High Authority for the dissemination of works and protection of the rights on the internet”. The project incorporates the recommendations made by the then CEO of FNAC (biggest CD and DVD retail stores in France), Denis Olivennes. One of the key measures is to sanction a violation of copyright by cutting access to the Internet.

This sanction would be imposed by a so-called “independent” administrative authority. Reported by private actors monitoring the Internet, the alleged offencers would then be remotely recognized by administrative officers who have access to personal connection data. All this without supervision of a judicial authority. So far, only law enforcement agencies fighting terrorism have that exceptional power, on a temporary basis, until the end of 2008.

This staggering bill, prepared under unbelievable conditions – Was a mission on GMOs ever given to Monsanto? – is indicative of a dangerous headlon flight for democracy, society and economy.

In France, many laws and regulations about digital technologies have been adopted in recent years, without prior consultation or assessment of the existing texts, under pressure from lobbies. The Olivennes draft law is being drafted while the implementation report of the very controversial 2006 law on copyright, planned for February 2008, has not even begun.

The previously adopted texts are out of step with the reality of usage and techniques. Just voted, they are obsolete, unenforceable, ineffective. Lawyers don’t even understand them. It’s squaring the Net: the devil does not want to return into the box! And what if the devil was the box itself?

Asking the question is by itself heretical. Just appointed, Denis Olivennes announced that it was out of question to legalize sharing of music and films for a fee distributed among artists. Such a blanket license was provisionnally voted in late 2005 by MPs from all sides, before the government, pressed by the publishers, brought the Parliamentary majority back in line to withdraw it.

The project Olivennes therefore drives the government into a dogmatic, almost obscurantist and authoritarian drift. It takes inspiration from obsolete oracles, considering the progress as a threat rather than an opportunity. The proposed step is however an unprecedented step backwards.

The Swedish ministers of culture and justice, who recently rejected a similar proposal, made no mistake, stating that “Many have noted that shutting down an Internet subscription is a wide-reaching measure that could have serious repercussions in a society where access to the Internet is an imperative welfare-issue.” Especially in the case of “triple play” offers, where the telephone and television could be cut too. The electronic social death of entire families on behalf of copyright? Beaumarchais, Victor Hugo, Jean Zay must be turning in their graves.

And what is there to say about the extension of emergency measures intented for combating terrorism, so that private companies can hunt the Internet users and circumvent the judicial authority? Who can believe that an Internet user punished in this way will turn to spending money in FNAC stores? Especially when one considers that disconnected users will still have to pay for their connection!

As for the cost to the taxpayer and the economy, it remains unknown today. No economic impact analysis has been carried out. To monitor, threaten and repress millions of people via a parallel justice has a price, however. To disconnect homes and businesses, as well. Public finances and all subscribers will have to bear the cost of this surveillance.

There are, however, other solutions: to legally secure democratic and creative uses of the Internet, enabling web entrepreneurs to innovate safely, to review the existing mechanisms for wealth distribution and finally admit that the punitive approach and dialogue reduced to(only between?) a few lobbies lead to market authoritarianism.

It is impossible to effectively control the flow of information in the digital age by the law and technology without causing serious harm to civil liberties and hindering economic and social development.

It took 3000 years to demonstrate that it was impossible to fit circles into squares, with a ruler and a compass, without loss, because of the transcendence of Pi. As squaring the circle in its time, squaring the net will be only overtaken by changing tools and perspectives. Will it take 3000 years for our elites to understand it?