Thursday, June 11, 2009

France Strikes Out on its Three Strikes Law Against Digital Piracy as the French Constitutional Council Affirms Individual Right to Internet Access

The Constitutional Council of France - a uniquely French legal body which is neither a court nor composed of judges - struck down the French Three Strikes Law against digital piracy as contrary to "French constitutional principles". As Peter Sayer of IDG News Service notes:
"France's highest legal authority has ruled as unconstitutional a government plan to cut off, without trial, Internet users accused of copyright infringement.

The so-called "three strikes" law would have handed over the power to disconnect surfers to a newly created High Authority for the Distribution of Works and the Protection of Rights on the Internet (Hadopi). It was approved by the French Parliament in April but has not yet been signed into law."

Liberté, égalité, fraternité

The idea of "individual liberty" is one of the core principles of world democracy and is integrally tied to the French Revolution more than 200 years ago, so that we were surprised to see France pass a law by which Internet access could be denied to file-sharers by an administrative body.

As we wrote about the French "Three Strikes Law" at LawPundit in France Defies European Union and Passes Controversial Anti-Piracy Three Strikes and You're Out Creation and Internet Law Against Illegal File-Sharing :
"We presume that a compromise political and legal solution will be the recognition of Internet access as a fundamental right of EU citizens, provided that they do not engage in illegal activities via that very same Internet. We see no direct confrontation to be necessary here."
Eric Pfanner at the New York Times writes about the decision of the Constitutional Council:
"The council said the proposal was contrary to French constitutional principles, like the presumption of innocence and freedom of speech. The latter right “implies today, considering the development of the Internet, and its importance for the participation in democratic life and the expression of ideas and opinions, the online public’s freedom to access these communication services,” the council said."
As written at CNet Digital Media News by Steven Musil:
"The council said "free access to public communication services on line" was a human right that only a judge should have the power to disconnect."
Nate Anderson at ars technica goes into the legal details in his French court savages "three-strikes" law, tosses it out, pointing out that a critical flaw in the Three Strikes Law was the fact that the USER had to prove that he had not illegally engaged in file-sharing in order to retain his or her threatened cut-off from Internet access:
"[B]ut the burden of proof was on the Internet user....

In its ruling [.pdf here (in French)], this was precisely the issue that the Council zeroed in upon, going all the way back to the French Revolution to stress the wrongheadedness of the HADOPI approach.

Moreover, whereas under section nine of the Declaration of 1789, every man is presumed innocent until has has been proven guilty, it follows that in principle the legislature does not establish a presumption of guilt in criminal matters," wrote the Council. This basic principle applies "to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature."

The court also made a strong statement about freedom of speech: "Freedom of expression and communication is so valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued."
Andrew Orlowski at The Register concluded:
"Hadopi (the acronym of the French government agency after whom the three strikes law was named) created a penalty of suspending an individual's internet connection for two to twelve months if they repeatedly downloaded unlicensed copyright material from the internet.

The [Constitutional Council] found several parts of Hadopi unconstitutional, violating the citizen's right to free speech, and the presumption of innocence....

"Freedom of expression and communication is all the more valuable that its exercise is a prerequisite for democracy and one of the guarantees of respect for other rights and freedoms and that attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued," they wrote.

The breadth of the finding effectively guts the law - so it's back to square one for copyright enforcement in France.

Or is it?

IFPI counsel Shirla Perlmutter told the World Copyright Summit that the French Government would resubmit the law to Parliament, taking account of the [Council's] objections.

"Our understanding is that a new version of the bill will maintain the same graduated response, but transfer powers executed by Hadopi to a special court...."
That essentially takes the teeth out of the Three Strikes Law and is a political setback for the French President. As written by Jose Vilches at Techspot:
"The decision is a setback for President Nicholas Sarkozy, who argued that the law was crucial to protecting artistic creation in the digital era, and a huge victory to everyone opposing it. With the uproar this so-called “three strikes” law has caused in France, and an earlier measure passed by the European Parliament prohibiting EU governments from cutting off a user's Internet connection without a court order, it seems unlikely that other European countries will propose similar laws."

Deadline Alert : USA Importer Security Filing & Additional Carrier Requirements Interim Final Rule (ISF 10+2) to require Advance Cargo Info

Michael Laden writes at gtnews.com about the impending deadline for implementation of the Importer Security Filing Rule of US Customs & Border Protection (CBP):
"We are nearing the half way mark of a one-year non-enforced phase-in of this rule and, unless otherwise delayed, on 26 January 2010 the CBP will begin full enforcement of this new requirement. If a company is not ready on this date, it might be a very painful and expensive experience. The most important take-away from this article is the heightened sense of urgency and anxiety about this looming deadline, especially if a company hasn’t filed its first ISF yet."
We recently registered at gtnews and just read the important May 19, 2009 article by Michael Laden of TRG Direct who writes in Importer Security Filing - Is Your Company Ready? that "[c]ompanies importing into the US must take stock of the new Importer Security Filing rule, which will incur steep penalties for non-compliance." (Bobsguide writes, by the way, about gtnews.com [free registration required] that "gtnews is the word's largest network of corporate treasury professionals. It is an unrivalled resource for treasury practitioners and those who do business with them.")

The impending rule discussed by Michael Laden is the Importer Security Filing and Additional Carrier Requirements Interim Final Rule, also known as the ISF 10+2 Rule because it requires 10 data elements from the importer and 2 from the carrier.
"To help prevent terrorist weapons from being transported to the United States, vessel carriers bringing cargo to the United States are required to transmit certain information to Customs and Border Protection (CBP) about the cargo they are transporting prior to lading that cargo at foreign ports of entry. This interim final rule requires both importers and carriers to submit additional information pertaining to cargo to CBP before the cargo is brought into the United States by vessel. This information must be submitted to CBP by way of a CBP-approved electronic data interchange system. The required information is reasonably necessary to improve CBP’s ability to identify highrisk shipments so as to prevent smuggling and ensure cargo safety and security. These regulations specifically fulfill the requirements of section 203 of the Security and Accountability for Every (SAFE) Port Act of 2006 and section 343(a) of the Trade Act of 2002, as amended by the Maritime Transportation Security Act of 2002. DATES: Effective Date: This rule is effective on January 26, 2009." [links added by LawPundit]
The 10 plus 2 "data elements" are found in the April 1, 2009 Testimony of Acting Commissioner Jayson P. Ahern, U.S. Customs and Border Protection, before the House Appropriations Committee, Subcommittee on Homeland Security, on Cargo and Container Security:

"The CBP Importer Security Filing covers the following key areas:
  1. Ten unique data elements from importers not currently provided to CBP 24 hours prior to foreign loading of cargo,

    • Manufacturer (or supplier) name and address
    • Seller (or owner) name and address
    • Buyer (or owner) name and address
    • Ship to name and address
    • Container stuffing location
    • Consolidator (stuffer) name and address
    • Importer of record number/foreign trade zone applicant identification number
    • Consignee number(s)
    • Country of origin
    • Commodity Harmonized Tariff Schedule of the United States number

  2. Two additional data elements provided by the carriers, including the Vessel Stow Plan, which is currently utilized by the vessel industry to load and discharge containers, and Container Status Messaging, which is currently utilized by the vessel industry to track the location of containers and provide status notifications to shippers, consignees and other related parties."
The time allotted for industry comment on the rule expired on June 1, 2009, and the one-year delay on enforcement of compliance ends on January 26, 2010, only about six months away, so time is getting short for importers to fully implement this act.

Ahern testified in detail about the rule as follows:
"Advance Information

CBP has recognized Congress’ mandate that we collect more and improved advanced information for cargo shipments. CBP, in fact, requires advanced electronic cargo information as mandated in the Trade Act of 2002 (including the 24-Hour Rule for maritime cargo). Advanced cargo information on all inbound shipments for all modes of transportation is evaluated through the Automated Targeting System (ATS) before arrival in the United States.

The function of ATS is to provide information to support the decisions of CBP officers working in Advance Targeting Units (ATUs) at our ports of entry and CSI ports. The system provides a uniform review of cargo shipments, identifies the highest threat shipments, and presents data in a comprehensive, flexible format to address specific intelligence threats and trends. ATS uses a rules-based program to highlight potential risk, patterns, and targets. Through rules, ATS alerts the user to data that meets or exceeds certain predefined criteria. ATS uses national targeting rule sets to provide threshold targeting for national security risks for all modes: sea, truck, rail, and air. CBP is continually striving to improve the ATS system by convening regular “rules conferences”. The conferences are attended by our intelligence officers and representatives from various seaports and land border ports who update risk indicators and ensure that the most current intelligence and trends are factored into ATS.

CBP has been working with importers for several years to put in place a rule that would ensure that we had timely access to the information necessary to perform a proper analysis of the risk posed by particular shipments. After that effort began, Congress endorsed it-- the SAFE Port Act mandated that CBP obtain additional advanced cargo information to enhance our ability to perform risk-based targeting prior to cargo being laden on a vessel overseas.

As many of you know, CBP announced an Interim Final Rule (IRF) in January 2009 that requires importers and carriers to electronically submit additional information on cargo before it is brought into the United States by vessel. Since then, CBP has received tens of thousands of Importer Security Filing (ISF) filings, hundreds of vessel stow plans and millions of container status messages that have already yielded some promising results.

The additional data elements that DHS is receiving under the importer security filing rule are critical to ensuring that we have the best information available about where a container originated, who filled it with goods, where this may have occurred, and what types of goods are being shipped.

The trade’s input during the consultative process as well as its participation in the Advance Trade Data Initiative was instrumental in the successful crafting of the rule. CBP made several significant changes to the proposed rule based on feedback received during its consultation with industry partners, the Departmental Advisory Committee on Commercial Operations (COAC), and other federal entities. These changes include a year-long delayed compliance period, considerable flexibilities associated with six of the data requirements, and a commitment to accept additional comments from industry until June 1, 2009 and then initiate a structured review to reexamine the rule’s impact on industry. Based upon this review, DHS will determine whether to eliminate, modify, or maintain these requirements."

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