SOPA, PIPA, ACTA and internet censorship laws.

[Magda Hassan]

Who Really Stopped SOPA, and Why?








I split my time these days between Silicon Valley and Capitol Hill, and last week was a very good week to be in Washington. In the fall, I witnessed the beginnings of a unique revolt over proposed legislation that would have dramatically changed the Internet's business landscape. Last week, that revolt achieved a stunning victory, sending Congress into a tailspin of retreat from bills that seemed certain, only months ago, to pass with little notice or resistance.
The two bills were the Senate's Protect IP Act and the House's Stop Online Piracy Act, or #PIPA and #SOPA as they became known on Twitter, where millions of Tweets condemned them and their supporters in and out of Congress. Heavily backed by D.C. favorites including the U.S. Chamber of Commerce and the music and motion picture industries, the legislation was superficially aimed at combating the scourge of foreign websites selling unlicensed or counterfeit American goods to U.S. consumers outside the legal reach of criminal and civil enforcement.
But to Internet users, the proposed legislation and the process by which it was steamrolled through a supine Congress took on mythic attributes. By the end of last week the firefight had morphed into a battle of old economy vs. new, of business as usual in Washington vs. the organized chaos of online life, of K Street lobbyists vs. ordinary users.


The Internet was having its Howard Beale momentusers were mad as hell, and they weren't going to take it anymore.The legislation needed to be stopped, by any means necessary. PIPA and SOPA became nothing less than a referendum on who controlled the evolution of digital life. And amidst the smoke on noise on the field, it was hard to tell who was really directing the troops.
One thing is now entirely clear. The Internet wonat least for now. Two weeks ago, at the annual Consumer Electronics Show, lawmakers and industry representatives were clearly in retreat, calling at lastbut with panic in their eyesfor constructive dialogue. Sandra Aistars, executive director of the Copyright Alliance, even complained that the technology community had failed to propose concrete "tweaks" to fix the bills. "A lot of the response has been amped up rhetoric that misstates the bills and the intentions of its proponents," Aistars said. "It is not directed to particular fixes."
But the time for constructive dialogue, which Congress and industry groups had overtly snubbed all year, was over. As CES attendees made their way home over the holiday weekend, the Obama administration, which had been notably silent, weighed in against the bills in their current form. "While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response," administration officials said, "we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet." Another nail.
By the time the Congressional Internet Caucus convened its annual "State of the Net" meeting a few days later, it was clear that something dramatic was happening. Defections accelerated to an unprecedented rate as advocacy groups opposed to the bills shuttled between Congressional offices. Co-sponsors were now condemning the legislation. By Tuesday, it was no longer clear if Senate Majority Leader Harry Reid (D-Nev.) even had enough votes to stop a promised filibuster from Sen. Ron Wyden (D-Ore.) on Jan. 24[SUP]th[/SUP], when Reid intended to force a floor vote on PIPA.
On Wednesday, the rebels detonated their nuclear option. Wikipedia and Reddit, along with other popular websites, went black, generating thousands of calls and millions of emails, many from constituents who had likely never heard of the legislation the day before. Online petitions picked up 10,000,000 signatures, members of Congress received 3,000,000 emails and a still-unknown number of phone calls. Thirty-four Senators felt obliged to come out publicly against the legislation. That night, all four Republican candidates condemned the bills during a televised debate.
The State of the Net, as I said at one of several events that week, was very very annoyed.
By Friday, what had long been seen even by opponents as a done deal had become a deal undone. Both Sen. Patrick Leahy (D-Vt.) and Rep. Lamar Smith (R-Tx.), chief sponsors of PIPA and SOPA respectively, threw in the towel. Scheduled votes were off, planned markups were canceled; the legislation was dead. The war was over, at least for now, and perhaps until after the 2012 elections.
After sixteen successful efforts to extend or enhance copyright law over the last thirty-five years, the content industry's perfect winning streak had finally ended. There was only now to cart off the dead and count up the wounded, and the battle would be over. At least until the next time.

Who Were Those Masked Men?



Meanwhile, now seems as good a time as any to ask what last week's uprising really meant. Who was behind the remarkable campaign to stop the bills? How did they turn a bi-partisan majority against the legislation? Why did they care?
These are not merely academic questions. A new and profoundly different political force has emerged in the last few months, a constituency that identifies itself not by local interests but as citizens of the Internet. Understanding who they are and what they want is essential for both the winners and losers in last week's slugfest. Ignore the lessons of the great uprisingof the dramatic introduction of "bitroots" politicsat your peril.
While there was plenty of traditional interest group politics at work here, the big story of last week (largely missed by traditional media) was the great awakening of Internet users. To be sure, the Consumer Electronics Association and advocacy organizations including NetCoalition were early in sounding the alarm about the proposed legislation early last year.
And a joint letter to Congress in mid-November from leading technology companies including Google, Yahoo, Facebook, Twitter, LinkedIn and EBay expressing concern over PIPA and SOPA was clearly one of many key events in turning momentum against the proposed laws. Visits from Silicon Valley entrepreneurs and venture capitalists played a role as well.
But to imagine that the millions of Internet users who took to the virtual streets over the last few months were simply responding to the clarion call of technology companies misses the real pointdangerously so.
Rather, it was the users who urged and sometimes pressured technology companies to oppose the bills, not the other way around. While the big companies eventually came on board, the push for them to do so came largely from activists using social networking and social news sites, including Facebook, Twitter, Tumblr and Reddit, to build momentum and exert leverage, sometimes on the very companies whose tools they were using.
If there is a first mover in this creation story, it would start with the influential blog Techdirt and its founder Mike Masnick. When PIPA passed out of a Senate committee in May without any debate, Masnick started writing every day (sometimes many times a day) about the potential danger of the bill and the disingenuous process by which it was being railroaded through Congress.
Progress seemed to be made. Over the summer, House leaders promised to fix the many problems in PIPA in their soon-to-be-introduced version of the bill. The technology community had been heard.
But when SOPA was unveiled in October, the seventy-page draft was worsefar worsethan PIPA, offering a virtual Christmas list of new legal powers and technical remedies for copyright and trademark holders, none of which would have done much to stop infringement even as they rewrote basic rules of digital life.
In the name of combating rogue foreign websites, SOPA would have allowed law enforcement agencies and private parties to force U.S. ISPs to reroute user requests, force search engines to remove valid links, and require ad networks and payment processors to cut ties with condemned sites.
Users who streamed a minimal amount of licensed content without permission, including through YouTube, would face felony charges. And most of the new powers made use of short-cut legal procedures that strained the limits of due process.
That's when the activists, online and off, shifted into high gear. The crusade was picked up on the social news site Reddit, which in turn drove protests at Tumblr and Mozilla, among others. At one point, Reddit users organized a boycott of domain registrar GoDaddy, which was forced to beat a hasty retreat from its longstanding support for the bills in a very public and embarrassing about-face.
The rebels had learned the Death Star's fatal design flaw, and were massing at the border to exploit it.
It was this groundswell of oppositionthe first signs of a coherent and powerful bitroots movementthat pushed executives at these companies and later their more established peers to go public with what had been more discreet opposition to the bills. In particular, Google, which had hedged on PIPA earlier in the year, took up the anti-SOPA flag and ran it through anyone on Capitol Hill who got in the way. And they brought many of their competitors along for the fight.


What are they Fighting for?
In Washington, the accepted wisdom by year-end was that the technology industry had matured at last into a lobbying force commensurate with its size and pocketbook. But what everyone missed was that the users had opened a third front in this fight, and clearly the one that determined its outcome.
The bitroots movement wasn't led by Google. It wasn't led by anyone. Even to look for its leaders is to miss the point. Internet users didn't lobby or buy their way into influence. They used the tools at their disposalTumblr, Facebook, Twitter and the restto make their voices heard. They encouraged voluntary boycotts and blackouts, and organized awareness days. This was a revolt of, by and with social networks, turning the tools that organized them into groups in the first place into potent new weapons for political advocacy. The users had figured out how to hack politics.

Now that the prototype has proven effective, we can expect similar responses to proposed legislation and regulation affecting other aspects of digital life in the future. And Internet activists will continue to co-opt the latest technology in singular pursuit of their goals and agendas.
Which are what, exactly? The answer is easy to find. And necessary. Those who are serious about channeling the energies of the PIPA and SOPA revolt into productive uses need to understand not just the how but also the why of last week's victory.
The political philosophy of the Internet, though still largely unformed, is by no means inarticulate. The aspirations of Internet users largely reflect the best features of the technology itselfopen, meritocratic, non-proprietary and transparent. Its central belief is the power of innovation to make things better, and its major tenet is a ruthless economic principle that treats information as currency, and sees any obstacle to its free flow as inefficient friction to be engineered out of existence.
Those seeking to understand what kind of governance Internet users are willing to accept would do well to start by studying the engineering that establishes the network and how it is governed. The key protocols and standards that make the Internet workthat make the Internet the Internetare developed and modified by voluntary committees of engineers, who meet virtually to debate the merits of new features, design changes, and other basic enhancements.
The engineering task forces are meritocratic and open. The best ideas win through vigorous debate and testing. No one has seniority or a veto. There's no influence peddling or lobbyists. The engineers are allergic to hypocrisy and public relations rhetoric. It's a pure a form of democracy as has ever been implemented. And it works amazingly well.
Today's Internet activists have adopted those engineering principles as their political philosophy. In that sense, their core ideals have not changed much since 1996, when John Perry Barlow published his prophetic "Declaration of the Independence of Cyberspace" in response to an equally ill-considered law that banned "indecent" content from the then-primitive World Wide Web. (The U.S. Supreme Court quickly threw it out as unconstitutional.) "We have no elected government," Barlow wrote, "nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks."
Barlow went on to "declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear." Barlow explains both the good and the bad, the productive and destructive, of the spirit that brought Congress to its knees last week. And does so, as with Jefferson two hundred years before, in the language of a poet. (Seriously, just follow the link and read the whole thing.)
In their political youth, Internet users are still profoundly idealistic and even a little naïve. They believe in democracy, freedom of expression and transparent governance; they have little tolerance for draconian rules, for back-room deals, or for imposed legalistic "solutions" to poorly-defined problems that might be better solved with more technology. They are, if anything, more libertarian than anything else. But even that label implies a willingness to engage in traditional political theater, a willingness that doesn't exist.
Like most online communities, this political activism is largely nonhierarchical, relying on consensus and open debate rather than delegation. Titles and resumes play little part in deliberationseach users and her point of view is evaluated on the strength or weakness of their argument.
And there are no permanent allegiances or mutual back-scratching. Google has been on both sides of similar, albeit smaller, outbursts, as has Apple, Facebook, and other leading technology companies. In their stampede for Internet freedom, users will trample anyone perceived to stand in the way Republicans, Democrats, mainstream media, technology companies, industry groups, and governments from local to international.
In the bitroots community, engineers play a unique role as trusted and objective commentators on what is and is not good for the Internet's underlying technology. They are the shamans who interpret the cryptic (and encrypted) messages of the gods, and they must be consulted before making any great or small change to the architecture that has delivered the users into the new world.
Engineers are trusted because they have proven themselves objective. They simply don't have the capacity for double-talk. Ask them how the network will respond to a proposed alteration whether of technology or law and they will tell you. Their candor may be novel for those used to governments built on subterfuge, but that doesn't make it any less valuable.
One of the unforgivable sins of the PIPA and SOPA process, consequently, was a complete failure to engage with anyone in the engineering community; what lawmakers on both sides of the issue regularly referred to as "bringing in the nerds."
And engineers were essential to getting it right, assuming that's what the bills' supporters really wanted to do. Both bills would have required ISPs to make significant changes to key Internet design principlesnotably the process for translating web addresses to actual servers. Yet lawmakers freely admitted that they understood nothing of how that technology worked. Indeed, many seemed to think it was cute to begin their comments by confessing they'd never used, let alone studied, the infrastructure with which they were casually tinkering.


The Next Internet Revolt

Internet users have revolted in the face of earlier efforts to regulate their activities, but never on this scale or with this kind of momentum. Perhaps that's because PIPA and SOPA presented a perfect storm. The draft legislation was terrible, the legislative process was cynical and undemocratic, and the public relations efforts of supporters fell flat on every level.

Yet it's already clear that the losers in the PIPA/SOPA fight have learned nothing from the profound activation of Internet users. Last week, Rep. Lamar Smith, SOPA's chief sponsor, dismissed the Wikipedia blackout as a "publicity stunt," while Sen. Patrick Leahy (D-Vt.), PIPA's author, blamed defecting Republicans (defections were bi-partisan, as was opposition to both bills from the beginning). And supporters are already looking for opportunities to snatch victory from the jaws of defeat. "My hope is that after a brief delay, we will, together, confront this problem," Leahy said yesterday.
The content industry has proven equally tone deaf. Speaking this week at the Sundance Film Festival, MPAA President (and former Senator) Chris Dodd called last week's protest "white noise" that "has made it impossible to have a conversation." That is, now that the industry has deigned to lower itself to having a conversation at all.
John Fithian, CEO of the National Association of Theatre Owners, unintentionally summed up everything that was wrong with the process from the beginning, "The backlash occurred," he said, "Google made its point, they're big and tough and we get it. Hopefully now reasonable minds will prevail."
They don't get it at all. It wasn't Google who made "the point," it was the company's millions of users. The sponsors of SOPA and PIPA don't even know who stopped them cold. But supporters of the proposed laws are retrenching anyway, preparing to launch a new assault on an enemy it hasn't identified.
Given both their arrogance and ignorance, it goes without saying that the content industries are unlikely to avoid similar catastrophes in the future, let alone find a way to work collaboratively with a political force they don't knowor believeexists.
On the other side, it's hardly time to declare victory and go home. Last week's win aside, the future success of the bitroots movement is far from certain. Whether the next issue is rogue websites, electronic surveillance, FCC oversight or government censorship (foreign or domestic), it may not always be so easy to call the Internet faithful to put up a united front.
Right now, it takes little more than a few key phrases "open," "censorship," "privacy," "break the Internet" to hook the outrage of the Internet masses. But maintaining momentum requires something more sophisticated. And the accusations have to prove true.
To become a permanent counterbalance to traditional governments, the bitroots movement will need to become more nuanced and more proactive. To avoid the very real possibility of mob rule, Internet activists must use their power responsibly. SOPA was a gimme. But legislators and regulators won't go quietly from this or future efforts to exert their influence over the Internet.
As the information economy increasingly becomes the economy that matters, we'll need to find ways to accommodate Internet values to traditional rulemaking, to bridge the expanding chasm between Capitol Hill and Silicon Valley. The stakes are highthe future of the economy as well as the technology depends on getting it right. We can't afford to mess it up. And we can't afford to dismiss the bitroots movement as a sporadic, random outburst.
It's worth remembering that some legislative interference has been valuable to the infant digital economy. These include protections in the U.S. against holding websites responsible for third party content (hard to imagine Facebook or Twitter or Reddit existing without that) and laws that minimize the authority of the Federal Communications Commission to work its particular brand of poison against broadband providers (they still oversee dial-up Internet services, and look how healthy that is).
Those acts of happy foresight seem far from the minds of tomorrow's would-be regulators, however. In an interview Thursday, former Senator Dodd called for a summit between "Internet companies" and content companies, in hopes of finding a compromise on PIPA and SOPA. "The perfect place to do it is a block away from here," said Dodd, pointing to 1600 Pennsylvania Avenue.
No, Mr. Dodd, the White House is not the "perfect place" to engage with Internet companies. And it isn't the companies who matter the most. If you really want a "conversation," you need to engage with Internet users, and you need to do so nearly anywhere except inside the beltway.
The only place to really engage your new adversaries is where they liveonline, in chat rooms and user forums and social networks, on Twitter and Facebook and Tumblr and Reddit and whatever comes next. If you want to understand what went so horribly wrong with your business-as-usual efforts, you'll need to take up residence in the digital realm and learn its new rules of engagement.
And if you want to persuade Internet users to help you innovate solutions for your industry's many problems, you'll need to come without your handlers and spin doctors, and without any expectation that your credentials or past accomplishments will carry weight in a serious debate about the costs and benefits of changing the architecture of the Internet to reduce copyright infringement. Come armed with facts, not rhetoric. Bring an open mind. And some engineers.
Oh, and if you're serious about making real progress, stop calling us nerds.
Do you think "bitroots" activism is here for the long haul, or was last week just a flash in the pan? Let us know. And follow me on Twitter @LarryDownes.



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