To Stop “Six Strikes”, Declare Broadband a Public Utility

Earlier this month, major ISPs started their “Six Strikes” program. By any rational measure, it’s a horrible idea. Yahoo! dubbed the plan“six strikes and you’re screwed”. Comcast’s implementation, using browser alert pop-ups, has been described as “a security disaster”.

Among other problems, it costs nothing for a copyright holder to file a complaint or accusation, but filing an appeal costs the user $35, making the system ripe for abuse.

Copyright and commercial lawyer Andrew Bridges calls the Six Strikes plan “Soft SOPA”, saying: “We have the government putting pressure on advertising networks and… payment processors, unofficially, to take the same measures that SOPA was going to require them to [do]. But now it’s a sort of ‘if you know what’s good for you, could you pretty please, wink-wink’ method.”

Obviously, this needs to be changed. And there may be a way to do it: Declare broadband Internet a public utility.

It’s an idea whose time has come. For one, the United States wouldn’t even be leading the way in this move. Internet access has already been declared a legal right, either by legislation or by court decree, in France, Spain, Finland, and Germany. The United Nations agrees, having issued a report in 2011 stating that they are “alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights”. The report specifically calls out “graduated response” laws such as France’s “three strikes” law and the UK’s Digital Economy Act 2010.

Tech policy expert and law professor Susan Crawford has been arguing to have the Internet declared a public utility for some time now — and not just for some kind of “socialist” theoretical reason, but because it’s necessary for the strength of the nation. In her recent book, Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age, she points out: “Truly high-speed wired Internet access is as basic to innovation, economic growth, social communication, and the country’s competitiveness as electricity was a century ago, but a limited number of Americans have access to it, many can’t afford it, and the country has handed control of it over to Comcast and a few other companies.”

In an interview with Bill Moyers, she says, “You can’t apply for a job these days without going online. You can’t get access to government benefits adequately. You can’t start a business. This feels to 300 million Americans like a utility, like something that’s just essential for life.” (Starts at 4:12 in the video.) She also mentions how crucial Internet access has become to education, pointing to a Wall Street Journal article about kids who have to study at McDonald’s because they have no Internet access at home.

Digital activist, thinker and writer Suw Charman-Anderson also says Internet access “should be treated the same way that water is treated in many countries: as an essential utility that cannot be summarily cut off, even if bills go unpaid. (emphasis added)” In a response to Vint Cerf’s assertion that Internet access shouldn’t be a “human right”, she says, “He’s right. Internet access is more akin to an essential utility, such as water, and should be treated as such.” In particular:

In the UK, it is illegal for water companies to cut the water supply to any customer, as water is seen as essential for public health. Without water you cannot cook, clean yourself, or flush away your excrement. The water companies, of course, do not like it when their customers do not pay, but the government has decided that public health issues come first.

She goes on to point out ways in which Internet access is like water — arguments reminiscent of what Prof. Crawford said to Mr. Moyers.

The Six Strikes plan was not enacted by Congress, and so “we, the people” can’t get it revoked. Our only option would be to switch to providers that don’t follow that plan — but very few of us have the option of switching providers at all, and generally we’re still limited to the five biggest providers, all of whom are jointly imposing the plan. (Free market? Competition? What’s that?[1])

But if we can get the Internet declared a public utility, then maybe we can reverse this. So: Where do we start with that?

[1] Incidentally, Prof. Crawford notes the lack of competition in the data-service space as a key reason why the US is lagging so far behind so many other countries in level of service provided per dollar. ↑↑

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