to your Internet.”For me, it all started with a phone call.
It was way back in September 2010, when I got a phone call from my friend Peter.
“Aaron,” he said. “There’s an amazing bill you have to take a look at.”
“What is it?” I said.
“It’s called COICA. The Combatting Online Infringement and Counterfeiting Act.”
“Oh, Peter,” I said. “I don’t care about copyright law. Maybe you’re right, maybe Hollywood is right, but either way is it really such a big deal? I’m not going to waste my life fighting over a little issue like copyright. Health care. Financial reform. Those are the sorts of issues I work on. Not something obscure like copyright.”
I could hear Peter grumbling. “Look, I don’t have time to argue with you. But it doesn’t matter for right now. Because this isn’t a bill about copyright.”
“It’s not?”
“No, it’s a bill about freedom of speech.”
The way that the law … would have worked is that the Justice Department could ask a court to declare a site as a “pirate” site and then get an injunction that would force the domain registrar or registry to no longer resolve that domain name—you’d land on an error message or be redirected to a government notice instead.
I knew that if the Supreme Court had one blind spot around the First Amendment, more than anything else—more than slander or libel; more than pornography; more, even, than child pornography—it was copyright. When it came to copyright it was like part of the justices’ brains shut off and they totally forgot about the First Amendment. You got the sense that, deep down, they didn’t even think the First Amendment applied when copyright was at issue.
Two very relevant cases on this front are Near vs. Minnesota and Center for Democracy and Technology vs. Pappert. Near vs. Minnesota involved striking down a state law that barred “malicious” or “scandalous” newspapers from publishing, allowing the state to get a permanent injunction against the publications of such works. In most cases, what was being published in these newspapers was pure defamation. Defamation, of course, is very much against the law (as is copyright infringement), but the court found that barring the entire publication of a newspaper because of some specific libelous statements barred other types of legitimate speech as well. The court clearly noted that those who were libeled have recourse to libel law to sue the publisher, but that does not allow for the government to completely bar the publication of the newspaper.
COICA would’ve created a list of “rogue” websites that the government could block access to with minimal due process. Perhaps even worse: it would create a second accounting of sites that wouldn’t formally be blocked—because the Feds only had much weaker cases against them, even by the bill’s lax standards—but would be put on a separate, public, list of sites that the U.S. government wasn’t very happy with. Internet Service Providers would then be encouraged to steer users clear of them.
It’s so easy to accidentally copy something. So easy, in fact, that we found the leading Republican supporter of COICA, Orrin Hatch, had illegally copied a bunch of code into his own Senate website.
In 2007, Comcast blocked file-sharing protocol BitTorrent for any use at all—even downloading the Bible. This forced the FCC to take action and sanction Comcast, which in turn led to Comcast suing the FCC and claiming the agency lacked the authority to regulate Internet access. Given the FCC’s prior deregulatory decisions upheld in the Brand X case, another federal court ultimately agreed with Comcast.
Then came candidate Obama and his promise that he’d “take a back seat to no one on Net Neutrality.” That stance, and FCC Chairman Julius Genachowski’s early promises, inspired the hope that Net Neutrality would finally be protected once and for all. But the comments from Obama and Genachowski also prompted the phone and cable companies to do what they do best: fight back with lobbyists and lawyers.
Remember that YouTube, which is now considered by Hollywood to be mostly “legit,” was once derided as a “site dedicated” to “piracy” just a few years ago. It’s no surprise that the Justice Department—with a bunch of former RIAA/MPAA lawyers on staff—would love to have powers to shut down many sites, but it’s difficult to see how such a law would be Constitutional, let alone reasonable. And finally, we must ask: why does the U.S. government consistently seek to get involved in what is, clearly, a civil business model issue?
Indeed, important media and political figures in the U.S. (such as Secretary of State Hillary Clinton) frequently bemoan the Internet’s “lack of a gatekeeper.” University of Chicago law professor and former Obama Administration “regulatory czar” Cass Sunstein has suggested that the federal government create an office to debunk “conspiracy” theories on the Internet. Former President Bill Clinton, that champion of honesty, has even suggested the creation of an entirely new cabinet department devoted to “fact checking” the Internet! These proposals are done in the name of preventing the spread of factual errors, misinformation, and “conspiracy theories.”
“Network Neutrality” forms the basis for the Internet’s historical openness. Sir Tim Berners-Lee could have adopted proprietary technologies to build his vision of a web of interconnected documents. Instead, he opted for openness when inventing the software that became the Web.
At the exact same time Senate Democrats voted down net neutrality repeal, many of them were scheming to bring so-called anti-piracy legislation to the floor. The two bills coming up at the same time represents a common, devious tactic: make a big show of solidarity with a community or interest group on one bill, while selling them out on the side. So if the interest groups complained, individual members could simply point to the other vote, and add, “This other thing isn’t that bad, trust us, we just showed you we’re on your side, right?”
I’ve represented areas of Silicon Valley as a Member of Congress since 1995. In those years in the House, I’ve tried to ensure that copyright enforcement does not come at the expense of technology, innovation, or privacy and free speech rights. This has become even more important as the Internet developed and became a part of our daily lives. Championing technology and free speech when considering copyright in the digital age can often be a lonely position in Congress.
Case law around the First Amendment is clear that you cannot block a much wider variety of speech just because you are trying to stop some specific narrow speech. Because of the respect we have for the First Amendment in the U.S., the law has been pretty clear that anything preventing illegal speech must narrowly target just that kind of speech. Doing otherwise is what’s known as prior restraint.
In perhaps the ultimate abuse of intermediary liability, Viacom, in a lawsuit against Google, argued that YouTube was complicit in acts of infringement because it allowed its users to mark videos as “private.” Private videos couldn’t be checked by Viacom’s copyright-enforcement bots, and Viacom wanted the privacy flag banned. Under Viacom’s legal theory—supported by all the major studios, broadcasters, publishers, and record labels—online services should not allow users to share files privately, or, at the very least, must allow entertainment corporations access to all private files to make sure they aren’t copyrighted.
The Pappert case—a much more recent case—involved a state law in Pennsylvania that had the state Attorney General put together a blacklist of websites that were believed to host child pornography, which ISPs were required to block access to. Again, child pornography is very much illegal (and, many would argue, much worse than copyright infringement). Yet, once again, here the courts tossed out the law as undue prior restraint, in that it took down lots of non-illegal content as well as illegal content … One of the complaints we’ve heard is that such past prior restraint cases do not apply here since “copyright infringement is illegal.” But, both defamation and child pornography also break the law. The point is that in all of these cases, there are existing laws on the books to deal with that specific content, which can be handled with a scalpel. Adding an additional layer that takes down an entire publication is where it stretches into clear censorship.
This is like requiring everyone to open up their kids’ birthday parties to enforcers from Warner Music to ensure that no royalty-free performances of “Happy Birthday” are taking place. It’s like putting mandatory spy-eye webcams into every big-screen TV to ensure that it’s not being used to run a bootleg cinema. It’s like a law that says that each of the big six publishers should get a key to every office in the land to ensure that no one is photocopying their books on the sly. This is beyond dumb. It’s felony stupidity.
While much of the case focused on the fact that the techniques ISPs were using took down adjacent websites on shared servers, the court did also note that taking down an entire URL is misguided in that “a URL … only refers to a location where content can be found. A URL does not refer to any specific piece of static content—the content is permanent only until it is changed by the web site’s webmaster … The actual content to which a URL points can (and often does) easily change without the URL changing in any way.” The argument was that taking down a URL, rather than focusing on the specific, illegal content constituted an unfair prior restraint, blocking the potential publication of perfectly legitimate content.
If you wanted to censor the Internet, if you wanted to come up with a way the government could shut down access to particular websites—this bill might just be the only way to do it. If you said it was about pornography, it’d probably get overturned by the courts—just like that adult bookstore case. But by claiming it was about copyright, it might just sneak through. And that was terrifying, because copyright was absolutely everywhere. If you wanted to shut down WikiLeaks, it’d be a bit of a stretch to claim you were doing it because they were distributing child pornography. But it wouldn’t be hard at all to claim they were violating copyright.
When I first read the bill that October, the notion that a bill like this could see the light of day was jaw-dropping. On the one hand, elected officials celebrated the Internet, used it in their campaigns, and extolled its disruptive potential in visits to Silicon Valley. Yet, under the guise of anodyne anti-piracy measures, we were about to give the U.S. government the power to disrupt its core architecture by allowing the U.S. Department of Justice the power to blacklist websites and tinker with the DNS system in ways the vast majority of Internet engineers thought unworkable.
When movies were invented, Thomas Edison, who held key film-related patents, claimed the right to authorize the production of films, tightly controlling how many movies could be made each year and what subjects these movies could address. The filmmakers of the day hated this, and they flew west to California to escape the long arm of Edison’s legal enforcers in New Jersey. William Fox, Adolphe Zukor, and Carl Laemmle, of Fox Studios, Famous Players, and Universal, respectively, founded the great early studios because they believed that their right to expression trumped Edison’s proprietary rights.
The early strategy was no more and no less than: stall. Play for time. And hope that in the intervening time enough doubts could be raised that proponents could be persuaded to amend the bill. Not defeat it. But improve it.
“Look,” they said. “This bill is going to pass. It’s going to pass unanimously. As much as we try, this is not a train we will be able to stop. So we’re not going to support it—who could support it?—but in opposition, let’s at least try to make it better.” That was the strategy: lobby to make the bill better. They had lists of little changes that would make the bill less obnoxious, or less expensive for them, or whatever—but the fact remained, at the end of the day, it was going to censor the Internet. And there was nothing we could do to stop it. So I did what you always do when you’re a little guy, facing a terrible future, with long odds and little hope of success: I started an online petition. I called my friends and we stayed up all night setting up a website for a new group, Demand Progress, with an online petition opposing this noxious bill. And I sent it to a few friends and posted it on some websites.
I was still technically a Rhode Island State Representative, a lame duck about to retire—or at least take a break—from a nearly decade-long career in politics that had chewed up most of my 20s. I’d lost a Democratic primary for Congress a couple months prior during which I’d garnered the support of a number of progressive Netroots groups, one of which was called the Progressive Change Campaign Committee and had been co-founded by whiz kid Aaron Swartz, renowned across the web for his Python coding skills and Internet evangelism. Aaron was based in Boston and spent much of the last couple months of my campaign camped out in our Providence headquarters, helping us rig up cheap polls and robo-calls and that sort of thing. One day he told me he was quitting PCCC; and here I was, six weeks later, working with him at Demand Progress.
Now I’ve actually done a few online petitions before. I’ve worked at some of the biggest groups in the world that do online petitions. I’ve written a ton of them and I’ve seen even more. But I’ve never seen anything like this. Starting from literally nothing, we went to ten thousand signers, then a hundred thousand signers, then two hundred thousand, then three hundred thousand. And it wasn’t just signing a name—we asked those people to call into Congress, to call urgently. There was a vote coming up this week—in just a couple days. We had to stop it!
When I first joined Demand Progress, I offered to host Swartz and Segal at my house in Washington for a retreat to plot out six-month and one-year goals for the organization. Our mission and methods were still up for debate, but during the retreat we decided to kick forward a broad work plan and focus our energies on those efforts where our members expressed the most interest. We basically treated the effort like a startup.
We did pick up a fascinating new tidbit or two as we roamed the Hill that day: the one that stuck with me was that one of the leading proponents of the bill—in addition to Hollywood, the Recording Industry Association of America, and the other usual suspects whose prints were all over the thing—was Deckers Shoes. You see, they own the brand Ugg, and the struggle they face—apparently worthy of legislation that would sabotage the fundamentals of the web—is that the term “ugg” is one of common usage in Australia and New Zealand: it denotes a whole variety of sheepskin boot. Deckers wanted to be able to block Americans’ access to sites that claimed to sell lower-case uggs, based eight thousand miles or so from the shores of the continental USA, foisting on unsuspecting Americans shoes that actually had some modicum of cultural relevance somewhere.
It was obvious that the pro-Internet forces were going to be massively outspent by industry proponents of COICA. We also knew that as a brand new group, Demand Progress would enter the debate with little-to-no credibility among status quo policymakers, that mainstream media coverage of our efforts would be almost non-existent, and that nobody thought we had any real chance to stop the legislative threat.
What was tremendously useful about that day was the meeting we had later: we navigated the bowels of the Capitol complex, dodging stacks of cardboard moving boxes piled full with the belongings of defeated and otherwise departing members, and dropped in on Matt Stoller. Matt had cut his chops as an early blogger and online activist and so cared deeply about bills that might compromise Internet freedom. We wanted to know what he thought we should do, whom we should talk to about lining up (virtual) bodies to stand with us. One critical tip: some guy named Patrick Ruffini. We also wanted to make sure that conservatives on the Hill were aware of the legislation, and so alerted Ron Paul’s office to it before we left the Capitol grounds that day.
Demand Progress was an activist group on the left, and advocated on the sorts of issues that would have placed us as diametric opposites on the political spectrum, especially during the Bush years.
It is not too difficult to imagine how various government agencies might want to use the state’s vast resources to control what ordinary citizens say and do online. It is in their interest to stand on the Internet’s metaphorical street corner and tell the American people, “Move along, nothing to see here.”
If we didn’t act, however, there was a danger that the bill would move so quickly, and opposition from the tech sector seem so esoteric, that these arguments could easily have been missed entirely. For their part, Hollywood had tried to portray COICA as no more controversial than renaming a post office. Looming large over the debate was a sense that content industry lobbyists had this sown up, and numerous times, tech industry sources warned that this could be passed, perhaps by voice vote, in the closing days of the 111th Congress.
And at the same time we told the press about it—and about this incredible online petition. And we met with the staff of members of Congress and pleaded with them to withdraw their support for this bill.
The Senate staffer wasn’t enthused. We’d created a petition in opposition to the Combating Online Infringement and Counterfeits Act—we’d branded it as the “Internet Blacklist Bill”—and written it up on a few websites. We had frontpage placement on the Huffington Post, and Boing Boing had given us a great write-up; somehow, within a week or so, three hundred thousand people had made known their opposition to the bill. We’d eventually understand this to be an opening grassroots salvo in what would become the movement that killed SOPA, but this guy seemed to be overestimating our standing—Aaron and I certainly didn’t feel all that formidable at the time.
Section 105, called “Immunity For Taking Voluntary Action Against Sites That Endanger The Public Health,” made it a vehicle to prevent Americans’ access to safe, foreign online pharmacies where brand name drug prices are often 85% lower than at U.S. pharmacies. The provision defined safe non-U.S. online pharmacies as ones that endanger the public health and could be subject to government actions. This section was more pernicious than those dedicated to copyrighted materials because acquiring necessary medication is essential to one’s health and well-being, and sometimes is a matter of life or death. Not so for the shared MP3 download.
The sad truth is that very few Americans were telling Congress that they opposed COICA or PIPA because very few Americans actually knew what their Congress was up to—or, worse yet, very few believed they could stop Congress. As a result, the major studios and record labels had a field day with the Senate by repeating the process outlined above. Since none of the offices had their phones ringing off the hook or stacks of letters and emails from their voters back home voicing opposition to the bills, it seemed like an easy choice coupled with a healthy infusion of campaign money. Many policy decisions made on Capitol Hill are a calculation of the people versus the money, but when the people do not show up, money will always win.
It was amazing, it was huge, the power of the Internet rose up in force against this bill. And then it passed the committee unanimously.
Two different versions of online censorship passed the Senate Judiciary Committee by unanimous 18-0 votes. Oregon Democrat Ron Wyden stood as the Senate’s lone opponent, and was twice able to place a “hold” on the bill, delaying further action. (As revealed in the Judiciary Committee’s vote count, Wyden was not even a member of the relevant committee tackling the issue.) In 2010, Wyden’s hold was accurately described as killing the COICA bill—which had emerged too late that year to pass. When Wyden did the same after the initial Judiciary Committee vote on PIPA in May 2011, the “hold” merely ensured delay. Senate Majority Leader Harry Reid would still be able to bring the legislation to the floor with a simple motion to proceed.
The only reason the full Senate did not pass the bill shortly afterwards was because one courageous senator, Ron Wyden of Oregon, stood against the bill from the onset. He understood from the beginning that what was being proposed would fundamentally alter the Internet in a negative way and that it would be unacceptable to the public (once they found out about it, that is). If it was not for his “hold,” then it is likely that PIPA would already be law. Americans owe him, and most importantly his dedicated staff, a lot for their bravery in the face of fierce political pressure.
In November, Sen. Ron Wyden had vowed to place a hold on the bill, but I knew that wouldn’t mean much. “Holds” and other Senate rules don’t matter to leaders when they really want to make the effort to pass the legislation in question. Here’s an example: throughout the first two years of Democratic Senate control in 2007–2008, Republican Tom “Dr. No” Coburn would routinely hold up virtually any spending bill on the grounds that the country’s deficit was too high. In almost every case, the holds got honored, even when the bills held widespread support. Harry Reid didn’t want to take the floor time to beat the filibuster. But in 2008, Democrat Chris Dodd placed a hold on legislation to immunize telecoms from their liability from participating in warrantless wiretapping. Despite Dodd’s longtime tenure, despite the typical practice of honoring holds, despite his own party’s control of the chamber, eventually the Senate took the time and broke Dodd’s filibuster and immunized the telecoms. This seemed like the same thing. If they really wanted SOPA and PIPA, they could break Wyden.
Now, as you may know, a single senator cannot actually stop a bill by themself. But they can delay it. By objecting to a bill, they can demand that Congress spend a bunch of time debating it before getting it passed. And Sen. Wyden did—he bought us time. A lot of time, as it turned out—his delay held all the way through the end of that session of Congress, so that when the bill came back it had to start all over again. And since they were starting all over again, they decided they might as well give it a new name. And that’s when it began being called PIPA and eventually SOPA.
When SOPA was unveiled in October, the seventy-page draft was worse—far worse—than 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.
It made sense for SOPA supporters to sell the bill as one protecting the public health. In fact, SOPA lobbyists regularly invoked Section 105 to convince members of Congress to support the bill as a matter of protecting seniors who order medication online. It also gave members of Congress great political cover to support the bill, despite not really understanding it.
Approached from the outside, if the issue could be framed as an issue of government overreach, rank-and-file Republicans, many of them Tea Party freshmen, could be rallied to oppose the bills as a sort of default anti-government, anti-Obama Administration position. Shortly after the new Congress convened, we made a point of going to the annual Conservative Political Action Conference with flyers talking up the dangers of giving Barack Obama and Eric Holder’s Justice Department broad discretionary power to take down websites.
On September 20, 2011, after a full year of fighting in the Senate against the Combating Online Infringements and Counterfeits Act (COICA) and its follow up bill, PIPA, I figured we were going to lose the fight on Capitol Hill unless a massive public outcry woke up Congress. At this point, more than one-third of the Senate cosponsored PIPA and responses to our concerns on free speech, overly broadband government authority over the Internet’s architecture, cybersecurity, and additional lawsuits killing innovative startups were virtually unheeded by most.
Price controls in other countries mean that drug prices are much lower abroad. Before the Internet, the only way for Americans to take advantage of lower prescription drug prices in other countries was to travel, usually in the form of trips to Canada and Mexico. In fact, in the beginning of the last decade members of Congress would lead bus trips up to Canada to help their constituents afford needed medication. Now the Internet has created a marketplace in which Americans who struggle to afford prescription medication in the U.S. can access lower-priced foreign pharmacies. Since lower drug prices correlate with more Americans filling their prescriptions, the online marketplace in pharmaceuticals benefits the public health, but U.S. laws serve the economic interests of producers at the expense of consumers. That’s because federal law bans individuals from importing the same medicine sold in U. S. pharmacies from Canada and other countries where it’s much more affordable.
Only Silicon Valley Democrat Zoe Lofgren could be counted on as a firm ally in early 2011, raising questions that February about the Department of Homeland Security’s takedown program for domestic websites, and the fact that eighty-four thousand run-of-the-mill websites were shut off for three days as part of a misdirected order against a domain hosting company. The incident also made for an instructive horror story about the lack of due process involved: the government had only meant to target one site, but in the process, had plastered a notice on tens of thousands of sites effectively accusing their owners of child pornography.
The effort to pass the SOPA/PIPA legislation tracked prior road maps used by what my friend Senator Wyden lightheartedly dubbed “Big Content.” Their game plan was to create momentum by lining up both business and labor allies, and support from both Republicans and Democrats. The costs of infringement were emphasized and sometimes exaggerated while the costs of crippling technological innovation were ignored. There was an almost complete unwillingness to solicit savvy technological input. So it came as no surprise when the first hearing on “online parasites” in March included testimony from the motion picture studios endorsing the need for legislation. The issue was soon reinforced by domain seizures through U.S. Immigration and Customs Enforcement’s (ICE) “Operation In Our Sites” of websites accused of infringing copyrights. Some of these seizures, including the seizure of Dajaz1.com, appeared to violate the rights of the site owner and the free speech rights of users.
Operation In Our Sites … is the first coordinated effort by the U.S. government to go after Web sites that are engaged in substantial amounts of criminally infringing activity. In the United States our legal system incorporates fundamental principles of due process and free speech, and those policy principles are extremely important to this administration. So Operation In Our Sites, and the manner in which it’s being carried out, has safeguards to protect to those policy principles. And I think that having increased law enforcement that is consistent with those values is what the United States should be doing, and I think that can and will be a good example to other countries as they are assessing how to fight online infringement.
No warning was made to site operators in advance of the seizure. Beyond the IPR Center press release, the government offered very little public comment on the seizures. The application and affidavit for a seizure warrant and the seizure warrant itself, with the specific charges levied against the sites, were not released for several more weeks. Notably, the five music-related sites were the first with domains seized by ICE that were more than just link and ad dumps. This was especially true of Dajaz1, Rap Godfathers, and On Smash, all of which were prominent and vital parts of the online rap community. Serving as a sort of amalgamation of radio station, MTV, fanzine, label liaison, PR, record shop, and local bar frequented by rap fans, each site hosted video and song premieres, broke news related to both niche and popular acts, and provided open message boards and chat rooms for fans and artists.
In essence, SOPA changed the debate from the original argument for PIPA (targeting foreign websites) to targeting everything Americans use and cherish today on the Internet. SOPA targeted user generated websites and open platforms in a way that would have destroyed the ecosystem of YouTube, Twitter, Facebook, and Tumblr. When I first saw the bill, I was floored that some in Congress would go so far as to engage in a scorched earth policy to fight piracy (and ultimately do very little to curb it).
Richard O’Dwyer, a 24-year-old from Chesterfield, England, founded TVShack.net in December 2007 while studying for a degree in computer science at Sheffield Hallam University. The site, which O’Dwyer started as a hobby, was essentially a boutique, entertainment-oriented search engine, which provided users with links to streaming movies, TV shows, documentaries, anime, and music. TVShack.net hosted no content on its servers, it merely pointed users in the direction of third party sites that did.
Without warning, on June 30, 2010, the TVShack.net domain was seized by U.S. Immigration and Customs Enforcement [ICE] and a boilerplate copyright notice was posted on the site. Richard continued to run TVShack. cc unimpeded, until one day when he got a rather unexpected knock at the door. The very long arm of the law, in the form of two American ICE officers, had come a-calling at his university accommodation in the north of England, accompanied by an escort of Her Majesty’s boys in blue. Richard was arrested. Richard, and his mother Julia, a National Health Service nurse, are currently in the process of appealing this autocratic extradition ruling.
Essentially while I would explain to an office that DNS filtering is used by countries like China and Iran and that, according to the experts, filtering makes the network vulnerable to cybersecurity attacks, the SOPA lobby would tell Congress that DNS filtering happens all the time for child pornography and malware and that experts have shown it is ok. But that’s technically untrue—Comcast, for example, does not filter anything because that would make its network unsecure.
Unlike the skin-deep remedy of DNS blocking (where the content would remain online, just not at a domain name), follow the money had already shown its effectiveness in cutting off online offshore gambling. Credit card companies, including Visa and MasterCard, already had well-established policies against supporting merchants who dealt in pirated or counterfeit goods, making censorship concerns a non-issue. Studies released during the debate showed that 95% of the trade in spam or online counterfeit goods flowed through just three offshore banks. This approach addressed these choke-points. Ironically, though the DNS blocking provisions in SOPA and PIPA represented a drastic departure for how the Internet was architected and policed, its net impact on rogue website activity would have been minimal.
Despite the statutory barriers to personal drug importation, the FDA has never prosecuted an individual for personally importing prescription medication for his or her own use. It is reasonable to view the practice as, de facto, decriminalized.
We anticipated little outcry from beyond the usual cadre of activists when Senator Amy Klobuchar sponsored S.978, an effort to subject online streaming to harsh criminal penalties. (It was later rolled into SOPA.) We first heard about the draconian prospective law through Mike Masnick’s Techdirt blog. In a June 1, 2011 article he alerted readers to the ramifications of Klobuchar’s proposal: “If you embed a YouTube video that turns out to be infringing, and more than ten people view it because of your link … you could be facing five years in jail.”
Since the bill had not been introduced with a formal name, we dubbed S.978 “Ten Strikes” and blasted a call to action to our email list.
The other thing was they didn’t know what bail conditions to impose on [Richard]. The judge was like, “We’ve got the money, we’ve got the passport, what else can we do to him?” The barrister said we could say that he mustn’t access the Internet, but then the judge was saying he’s got exams the next week, he’s at university, so we can’t do that, can we? And how could we police that anyway, he could just go in an Internet café. So Richard had to tap on the glass, because he was behind this glass wall in the court, to get somebody to come over so that he could make suggestions to them about his bail. He just said, “You could tell me not to access the TVShack website”—which he’d already taken down anyway—and “You could tell me not to buy any new domain names.” So he chose his own bail restrictions because they didn’t know what to do. It was funny. Well it would have been funny if it hadn’t been so frightening.
The DMCA required any website, including social networks and search engines (termed “intermediaries” as they routed most of the link-clicks on the Internet), to take down specific links to offending content at the rights-holder’s request. SOPA would go much further: takedowns of entire domains if owners were aware that their sites were being used to upload pirated content (alongside legitimate content), and continued to provide an avenue for that activity. This would create massive legal uncertainty for social platforms large and small, as it was a virtual certainty that any social or mobile startup would have users who would post pirated content at some point in time.
I was at an event and I got introduced to a U.S. senator—one of the strong proponents of the original COICA bill. And I asked him why, despite being such a progressive, despite giving a speech in favor of civil liberties, he was supporting a bill that would censor the Internet. And the typical politician’s smile faded from his face and his eyes started burning a fiery red. And he started shouting. Something like, “Those people on the Internet!” He yelled, “They think they can get away with anything! They think they can just put anything up and there’s nothing we can do to stop them! They put up everything! They put up the plans to our fighter jets and they just laugh at us! Well, we’re going to show them. There’s got to be laws on the Internet—it’s got to be under control.”
Despite the growing opposition through the summer and early fall, there was little indication that Congress was listening. In the Senate, PIPA had been approved without objection by the Judiciary Committee, had numerous bipartisan cosponsors, and looked like it would have the votes to pass. Then, in late October, the leaders of the House Judiciary Committee introduced SOPA. Rather than addressing the problems with PIPA, SOPA was far worse. It expanded the field of sites that could be targeted and not only kept PIPA’s problematic remedies, but added new ones that threatened a broad range of legal sites. Even though it moved in the wrong direction, SOPA had similarly ominous bipartisan support.
By the fall of 2011, “Big Content’s” forces were advancing on all fronts, culminating in SOPA’s introduction by Congressman Lamar Smith (R-TX), Chairman of the House Judiciary Committee. I had warned my colleagues in private discussions that SOPA was one-sided and lacked any meaningful input from the tech community, and I pressed for a delay so it could be better balanced. Democrats no longer controlled the House and these requests were unavailing. With legislation in both the House and Senate, the situation appeared favorable for steam rolling the bills through Congress. Because proponents “had the votes” there seemed little interest in negotiating to fix problems.
[Lamar] Smith thought he was being savvy. He’d introduce legislation that was more extreme than PIPA, making PIPA look reasonable, thereby helping ensure its passage: it would be the new “compromise” between the extremes of “leave well enough alone” and “that runaway train loaded up with dirty bombs that Lamar Smith introduced last week.” Maybe, just maybe, he’d even get lucky and pass SOPA outright: Hollywood had its talons in the bulk of the Democratic caucus; the Chamber of Commerce could force enough Republicans to the table and offer them nose-plugs that they could use to avoid the stench of those pansy Los Angeles effetes whose bidding they were being compelled to do …
The timing also struck me. Congress, which typically did almost nothing in November and December without a good reason, had planned hearings and markups and votes for SOPA and PIPA during this period. From the beginning, the key sponsors sought passage at the end of 2011, when public attention focused anywhere but Washington. They obviously wanted it to slip through unnoticed.
Under the pretext of protecting the rights of artists, the corrupt and very powerful copyright industry spent a record $92 million on a push for the House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect-IP Act (PIPA). These laws—laws that could censor or even shut down any website without due process—faced minimal public resistance despite their stifling impact on entrepreneurial, intellectual, creative, religious, and political expression. With overwhelming bipartisan support, their passage was seen as inevitable.
It doesn’t help that the tech industry, despite being very well known to the public, is still fairly new and small in the Washington D.C. political scene, while the movie and music industry have lobbied successfully on copyright law for decades. So while we opposed the bills and conducted as much Capitol Hill outreach as possible, it had very little impact.
It seemed obvious that the libertarian-right should be opposed to this legislation: after all, it was a robust new regulatory regime being foisted upon Americans by one of conservatives’ very favorite boogeymen: Hollywood.
Because passage in the Judiciary Committee seemed assured, the anti-SOPA lobbyists had to hustle and get creative, going places where Hollywood’s underworked lobbyists wouldn’t. They talked to freshman members on the Government Oversight committee, who might be looking to do a favor for their chairman, Darrell Issa. More generally, they viewed any backbencher without a previous history with Hollywood as a potential get.
Mark [Mark Meckler—co-coordinator of the Tea Party Patriots] is conservative, but the kind of guy who’s willing to go on fringe left-wing TV or radio and have a real dialogue with the “enemy.” During one session in which neither of us was a participant I cornered him and convinced him to join me in the Green Room, where we co-authored this snippet of propaganda: “Have your own Web site?” the group wrote, “Maybe the government will shut it down tomorrow … without any notice to you. Republicans are going to introduce this (bill) in the House, Democrats in the Senate. What? Big labor, Hollywood, U.S. Chamber of Commerce all in this together … against you.” We linked it back to an article that Patrick Ruffini, Charlie Turner, and I had written for the Portland Oregonian in support of Wyden’s hold, and sent it to eight hundred thousand members of the Tea Party—via Facebook. And then I looked over Mark’s shoulder as he reloaded the page about one hundred times—in a fit of juvenile delight that’s all-too-familiar to me as somebody who also works with a large online activist list—as he watched hundreds of people “like” the post.
There is a saying that politics makes strange bedfellows. I don’t agree with Congressmen Darrell Issa (R-CA) and Jason Chaffetz (R-UT) on many things but we could agree on SOPA/PIPA. I was happy to join forces with these fellow members of the House Judiciary Committee to make an effort to derail the oncoming freight train that SOPA had become. We were joined by Congressman Polis who would soon be appointed to the Judiciary Committee.
During the months of PIPA, I met with countless Congressional staffers who were concerned about the national security implications of DNS filtering and the First Amendment concerns raised by the free speech community. However, given the fact that the politics looked extraordinarily one-sided, many staffers and their bosses fell into one of two spaces: a) If so many other offices cosponsored the bill, then maybe our concerns were unwarranted, and b) why should they stick their neck out against a bill that seemed all but certain to pass?
Shortly thereafter Tea Party Caucus chair Michelle Bachmann came out against the bill—first reported via a response she sent to a constituent who’d emailed her using one of Demand Progress’s petition pages.
“I have serious concerns about government getting involved in regulation of the Internet,” wrote Bachmann. “And about ambiguities in this legislation which could lead to an explosion of destructive, innovation-stalling lawsuits.”
Silicon Valley tends to hold quite liberal positions on matters of social policy, to which I absolutely adhere: support for gay rights, drug policy and broader criminal justice reform, less militarism, and the like. But a substantial sub-portion of tech tends towards an anarcho-capitalist economic vision whereby an optimal society is one in which perfectly networked people-points engage in frictionless commerce, with very low taxes and a minimal social safety net, and in which unions—were they ever useful—are endemic to the ossified industrial structures that governed the Old Economy.
SOPA could be read to cover social sites like Twitter and Facebook, demanding they actively take steps to prevent pirated content before it was posted. Not only were newer, venture-funded social and mobile startups the darlings of the Internet economy; they were exactly the tools one would use to defeat government censorship, whether earlier in 2011 in Egypt or, now, in the United States.
It was this dynamic, triggered by SOPA but not by PIPA, which caused the Internet—led by smaller players like Tumblr and reddit, more than by established players like Google—to go on nuclear alert.
Not only was PIPA a priority for both Hollywood and its major unions like the Teamsters, but the analogous dynamic was playing out at the national scale, with storybook antagonists like the Chamber of Commerce and AFL-CIO both supportive, and even purveying joint propaganda at their various Capitol Hill lobby days. Indeed, noting organized labor’s support for the legislation was one of proponents’ mantras throughout the battle.
One lobbyist involved in the anti-SOPA effort described the scene early one morning in the cafeteria at the Rayburn House Office Building at the height of the debate. Their team would convene at around 7:30 a.m. for member and staff meetings, and had so much ground to cover with that no more than one person was ever in meeting with a member or staffer at once; usually, in-house lobbyists and consultants teamed up. They also noticed the entertainment lobby was out in full force, with around fifty lobbyists convened at eight or nine tables pushed together. The anti-SOPA lobbyists set forth for their first wave of meetings, and reconvened at 9 a.m. When they returned, they noticed something odd: few if any of the pro-SOPA lobbyists appeared to have moved from their seats in an hour and a half.
Labor’s support for SOPA/PIPA was by no means uniform: institutional leadership tended to support the bills, but without exception, actual rank-and-file union members and organizers whom I spoke to were aghast to learn of the work that labor officials were undertaking in their names. And even some institutional players broke free from the apparent pro-SOPA/PIPA consensus. One unsung hero of this story is the Writers Guild of America, West, which in 2007 had gained the nation’s attention and sympathy when its members went on strike over DVD and new media residuals.
“On the House side, Keyser and Barrios met with Reps. Henry Waxman, Howard Berman, and Janice Hahn. They thanked Waxman for his strong support of Guild issues and discussed concerns with the recently introduced Stop Online Piracy Act (SOPA). Because Berman is a co-sponsor of SOPA, the pair discussed their concerns with the bill’s implications for competition and an open Internet. Although the WGAW strongly supports combating piracy, the competition, First Amendment, and due process concerns the bill creates must be addressed.”
As Fight for the Future launched that October, they had in mind the mobilization of an entirely different crowd that was similarly predominantly apolitical: people who pay attention to Justin Bieber. Klobuchar’s bill could’ve turned him (more likely his mom) into a felon. FFTF’s campaign entailed launching a satirical site that was to serve as the hub of the “Free Bieber” movement. Their crack design staff mocked up several images of the Biebs behind bars, which straddled the line between hilarious and genuinely disturbing—one had him stuck in a cell, crying a L’il Wayne tattooed tear, caught in the gaze of a much older inmate. Within a few days we’d struck the mother lode: a radio host confronted Bieber about the bill and the concocted controversy. His response was to deliver a rather heartfelt (though clearly teenaged) soliloquy about how important it is that people be free to perform and share music; that he loves watching fans’ YouTube performances of his hits; and, most critically, that Amy Klobuchar “needs to be locked up, put away in cuffs.”
During a freak snowstorm on Halloween, FFTF discussed how disturbed they were by what SOPA would do if it passed. We realized that if SOPA passed, we could wake up someday to see some of our favorite websites seized by the government without due process or even a real warning. That became the driving concept we latched onto: we’d work to raise awareness of the censoring power of these bills by convincing websites to “take down” their own sites in an Internet-wide protest. As an early salvo, FFTF began to plan a day of protest called “American Censorship Day” on November 16—the date of the first SOPA hearing.
Fight for the Future (for which I was doing some contract work at the time) took the lead in organizing the critical “American Censorship Day” in mid-November. It’s when reddit and Tumblr formally joined the effort—and Demand Progress provided some tech support for them. The effort steered many hundreds of thousands of new constituent contacts to Congress.
Ahead of the hearing, ten House members—among them Ron Paul, Jared Polis, Issa, and Lofgren—sent a letter to Smith and ranking Democrat John Conyers warning that SOPA would target domestic websites and urging them to go slow. While Silicon Valley was heavily represented on the letter, the signatures also began to tell the story of the coalition’s broadening reach, with representatives from tech corridors in Austin, Boulder, and Pittsburgh signing on. The letter also meant that there would be a divided house on SOPA right off the blocks—the opposition numbered a dozen members, to the twenty-four who had signed on as SOPA co-sponsors as of November 15th. While not numerically even, it was better than the 40-to-1 split that persisted in the Senate. And it would mean that there would be substantial opposition in both parties, raising the specter of chaos on the House floor.
As I learned more about it, I knew it was really bad. When I say really, I mean really fucking bad. I have been a long-time open-Internet advocate, and many of my colleagues said, “This is the worst bill we have seen in the past decade.”
Here was a bill proposed by lobbyists of the content industry—in the U.S., the RIAA and MPAA; internationally, the IFPI and many more. They said it was about piracy, but it was really about something more. It was part of a war on sharing, a fight against the way that the open, distributed Internet works. It was a blatant attempt to preserve their business models to the detriment of artists, innovators, and the public at large. And it was poised to pass. I called up some of my friends at Mozilla (you may have heard of their browser, Firefox) and said that we had to do something, and quick.
When the bill came back and started moving again, it all started coming together. All the folks we had talked to suddenly began really getting involved—and getting others involved. Everything started snowballing. It happened so fast. I remember one week, I was having dinner with a fellow in the technology industry. He asked what I worked on and I told him about this bill. “Wow,” he said. “You need to tell people about that.” And then, just a few weeks later, I was chatting with this cute girl on the subway. She wasn’t involved in the technology industry, but when she heard that I was, she turned to me, very seriously, and said “You know, we have to stop SOAP.” Progress.
For those keeping count, more than 140 Internet engineers and cybersecurity experts, including the people that built the Internet, told Congress that filtering is dangerous while a grand total of three individuals said it was totally fine. Another argument was that the mere fact that the cable industry endorsed SOPA was proof that DNS filtering was not that big of a deal. I suppose it is just a coincidence that the NBCU (also Comcast) merely happens to be the largest and most powerful member of the National Cable and Telecommunications Association.
Despite all the advances in connecting with representatives and senators, emails and online petitions just don’t get the same immediate attention from most Members of Congress that is created by a massive inpouring of phone calls. Petitions get noticed too, but elected officials know that a person who takes the time to call is also likely to take the time to walk into a voting booth. A few social network sites made an initial effort to generate phone calls in opposition, but it fell short. There were not enough phone calls, and many calls were made to the district offices of Members of Congress—when policy staffs and Members were in Washington. Hardly anyone noticed. But the effort was getting attention from tech bloggers and some online media sources. It was clear SOPA was being taken seriously as the threat it was. But would a large enough effort come in time?
If SOPA were to have passed it is within reason to believe—depending on how the Courts interpreted “engage in, enable, or facilitate” copyright infringement—that Facebook posts, Twitter links, and really any Internet service or app that allows a user to post and others to view would have to screen material. A site like YouTube would need to preview the seventy-two hours of video uploaded each minute, and then approve the video. The companies would have to screen material either manually or using automatic filters with high false positive rates and no real way to check for “fair use.” They would have done this filtering either preemptively or very quickly after it was posted.
The political case for passing SOPA had been utterly decimated by the way its proponents handled the process in the Judiciary Committee, starting with a propagandistic one-sided November hearing that singled out Google as the bill’s sole opponent, and ignored the other “nerds” beating down Smith’s door to testify. Dismissal of the technical concerns—and of any real debate whatsoever—was cited by many in the technology industry as the catalyst for first getting involved and spurring their users to action.
My foray into the political arena began with an email on November 6, 2011. Christina Xu, who works with me at Breadpig—a social enterprise I’d started—sent along a note from a friend who alerted her to a pair of bills that looked destined to pass the House and Senate before the New Year. Written with over $94 million in lobbying from the entertainment industry, the first versions of SOPA and PIPA read as though a technologist had never even been consulted. If either of these bills had been law back in 2005 when Steve and I founded reddit together, the site wouldn’t exist today.
And like that, the alarms went off. We had to do something huge. And luckily the Internet is the perfect platform for doing big things.
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 itself—open, 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 work—that make the Internet the Internet—are 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 word “hacker” has an unfairly negative connotation from being portrayed in the media as people who break into computers. In reality, hacking just means building something quickly or testing the boundaries of what can be done. Like most things, it can be used for good or bad, but the vast majority of hackers I’ve met tend to be idealistic people who want to have a positive impact on the world. Hacker culture is also extremely open and meritocratic. Hackers believe that the best idea and implementation should always win—not the person who is best at lobbying for an idea or the person who manages the most people.
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.
I recently heard a woman from the Occupy movement say the most poignant thing. She said “no one is coming for us.” Her generation does not expect the government to be there when they need it, nor do they think the incumbent industrial hierarchies are structured or motivated to address the challenges they expect to face. Remarkably, she was not depressed, defeated, or bitter. She was determined. The kids who grew up inside AOL chat rooms and came of age on Facebook have an intuitive understanding of the power of networks that our generation will never have. They are not asking us to fix the problems we left them with. They are asking us not to get in their way as they try to dig themselves out. I think we owe them that.
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 as pure a form of democracy as has ever been implemented. And it works amazingly well.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I 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. We must declare our virtual selves immune to your sovereignty, even as we continue to consent to your rule over our bodies. We will spread ourselves across the Planet so that no one can arrest our thoughts. We will create a civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before.
I remember at one point during this period, I helped organize a meeting of startups in New York, trying to encourage everyone to get involved in doing their part. And I tried a trick that I heard Bill Clinton used to fund his foundation, the Clinton Global Initiative. I turned to every startup founder in the room in turn and said “What are you going to do?”—and they all wanted to one-up each other.
Brad leaned on his portfolio companies to participate, and with that came a scatter shot of some of the moment’s most influential social media start-ups, and a home base for the meeting: Tumblr’s hipster-chic offices in lower Manhattan. I leaned on Zoe Lofgren’s office to have the Congresswoman open the call, and she quickly accepted: her gravitas would help draw people in, and she would be able to walk us through the nuts-and-bolts of the markup process. And the techies whom we were hoping would participate would be impressed by her savvy about issues that many of them seemed to assume every last member of Congress was completely ignorant of.
Apparently I was the only one celebrating SantaCon that day. Nonetheless, before celebrating with hordes of my fellow Kringles, I took a seat and we went around the room, volunteering contributions from our websites that might help spread the word about SOPA and PIPA. Today, reddit is one of the one hundred most popular sites online, but it’s rare in that the platform is rather open—much like the Internet itself. My offering was simple: we’d present the threat to the reddit community and give them our rationale behind the opposition. I didn’t know how our millions of users would react to the imminent threat, but I knew the best ideas for action wouldn’t come from me or even this room of “experts.”
We decided on a strategy. On November 16, sites such as Mozilla, Tumblr, reddit, and even 4chan would blackout their logos in protest of SOPA. Fight for the Future set up a central site called American Censorship Day, where all the sites involved were listed. And there was a call for the Internet community to get involved. This was a watershed moment in the politics of the Internet: sites like Mozilla and Tumblr took a public stance for the first time ever on a political issue.
Our path to victory was dangerously narrow. As best, I could predict, it would play out as follows: Lamar Smith would succeed in ramming the bill through markup on the Judiciary Committee, and at that point, we would need to rely on Tea Party pressure to save us at the eleventh hour by persuading House majority leader Eric Cantor not to schedule SOPA for the floor. It seemed more plausible than any other SOPA death scenario, especially as the Senate seemed far more likely to pass its own tamer version of the bill. Nonetheless, given the deference normally given powerful committee chairs like Smith, it was a perilous path forward for the opposition.
A “markup” of a bill is a time when the committee of jurisdiction meets to go through the bill, line by line, with Members of the Committee offering amendments. It is a formal proceeding, televised and now webcast. December 15, 2011 was the beginning of the Judiciary Committee “markup” of SOPA. Showtime.
On the night of the 14th, I received a frenzied call from a tech industry lobbyist. Smith had been twisting arms, we didn’t know who was on our side anymore, and we were down to as few as half a dozen votes on the committee. The Internet needed to light up the phones. At the suggestion of a Capitol Hill veteran in my office, I would tweet out the direct line to the Judiciary committee staff room. It was reasoned that members would be taking meetings there in between votes. We brainstormed creative ways for members to experience the crescendo of outrage firsthand.
Big stories like this are just more interesting at human scale. The director J. D. Walsh said good stories should be like the poster for Transformers. There’s a huge robot on the left side of the poster and a huge army on the right, but in the middle, at the bottom, there’s just a small family, trapped in between. Big stories need human stakes.
In the winter of 2011 when my friend David Segal approached me about creating a YouTube video in opposition to SOPA, I knew it must be the right thing to do, because I trust David to be on the right side of things. I knew that, despite the hanging questions for artists as to how we will survive the transforming music industry, the answer would never resemble the heartless clampdown on fans proposed by SOPA. I knew that fans covering our songs at school talent shows and using our music as a soundtrack to personal slideshows deserve our gratitude, not legal action.
Issa’s crafty and resourceful social media team had set up a website, KeeptheWebOpen.com, initially to showcase their government transparency initiatives (including a platform called MADISON allowing wiki-style edits to legislation), that would be used as a platform to live-stream the hearings. A core of opposition quickly formed around Issa (himself a senior Republican and chairman of the Government Oversight committee), Lofgren, Polis, and Republican Jason Chaffetz of Utah.
You know that old slogan from Texas? Don’t mess with Texas. Well, some of us wanted to make sure Lamar Smith, the congressman from Texas who proposed SOPA, heard our version of the slogan: don’t mess with the Internet. A group of us, led by reddit cofounder Alexis Ohanian, started a crowd-funding effort that turned the slogan into a billboard in Lamar’s Texas district.
During the pivotal committee markup in mid-December, the analyses regarding cybersecurity—the whitepaper, the Sandia letter, the op-eds by Stewart Baker, a new EFF-organized letter signed by eighty-three Internet engineers—were cited repeatedly by Reps. Lofgren, Issa, Chaffetz, Polis, and the other SOPA skeptics as they criticized the bill. Rep. Chaffetz memorably chided his colleagues, “We’re going to do surgery on the Internet … without bringing in the doctors. To my colleagues I would say, if you don’t know what DNSSEC is, you don’t know what you’re doing” with this legislation.
The first sign that the opposition would not go down without a fight came with a relatively simple procedural motion: they forced a full reading of the bill before the committee—a process which would take more than an hour at the outset of the proceedings. This delay set the tone for the next two days and was set against the backdrop of an impending recess and Congress rushing to tie up loose ends before heading home for the holidays.
We had prepared well over one hundred substantive amendments to SOPA, to be offered by a bipartisan group of Members. We started the markup at 10:00 a.m. and by the time the Committee recessed twelve hours later around 10: 00 p.m., we hadn’t reached all of the amendments that needed to be offered.
The opposition on the committee planned to offer as many amendments as possible. Democratic Rep. Jared Polis, an avid gamer and the only Internet entrepreneur in Congress, planned to force the committee to vote yea or nay on barring federal funds being used to benefit pornographers—who were some of the most aggressive copyright litigators. Rep. Zoe Lofgren, a Democrat from northern California, would ask movie theater owners to participate in SOPA’s rigid enforcement mechanisms; after all, movie theaters were themselves intermediaries for movie piracy, with “users” making bootleg recordings. Why not hold them accountable like you would the owners a website with millions of users, some of whom traffic in pirated content? In total, fifty-five amendments would be submitted.
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 disposal—Tumblr, Facebook, Twitter and the rest—to 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.
Reflecting the indifference of most members to the dry technical issues behind the bill, Rep. Steve King (R-Iowa) began venting his frustration on Twitter: “We are debating the Stop Online Piracy Act and Shiela Jackson [sic] has so bored me that I’m killing time by surfing the Internet.” Jackson Lee spoke up to object, calling the remark “offensive.” Representative F. James Sensenbrenner (R-WI), a former committee chairman hostile to SOPA, piled on, demanding that Jackson Lee withdraw her remarks. Chairman Smith suggested she withdraw the word “offensive.” After some back and forth involving the body’s Parliamentarian, and a long delay, Jackson Lee agreed to strike her one word rejoinder, and instead deem King’s tweet “impolitic and unkind.”
One of the unforgivable sins of the PIPA and SOPA process … 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 principles—notably 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.
While televised House proceedings were nothing new (think C-SPAN), committee live-streams were rare, and this would become one of the most watched markups (if not the most watched) in history.
What made SOPA different was that much of the exchange between constituents and officials was being posted online, thus merging many private one-to-one conversations into a massive one-to-many conversation. And the back-and-forths between different citizens and the same senator thus changed from iterations of the same query-and-response into a continuing discussion between that senator and the public at large.
Over two hundred thousand people watched the live stream of the hearing, and they tweeted and laughed about it. Why were they laughing? It was so painfully obvious that the U.S. Congress, the people we entrust to create our laws, fundamentally did not understand the Internet. There were members of Congress who had no idea what a domain name is, let alone how the Domain Name System, or DNS, works, voting on a bill that would change the very nature of this system. This was a huge wake up call. People were angry. In one of the only planned moments of levity, Congressman Jared Polis, probably the person in Congress who knows the most about the Internet, proposed an amendment saying that SOPA should not be used for porn. Basically, he was trolling. He not only told Congress about the song “The Internet Is for Porn” but asked to enter it into the Congressional record.
Tumblr went above and beyond the call of duty with one of the most creative actions of the protest: they blacked out the dashboards of their over sixty million members, the overwhelming majority of whom had surely never heard of SOPA, or ever engaged in political protest.
The markup and amendment process helped to detail the failings of SOPA, from cyber-security to privacy to free speech. Finally, the delay gave time and opportunity to organize opposition among Internet users.
Tumblr had built an incredible tool that enabled all its users to easily call their politicians. And like that, we had nearly one hundred thousand calls to Congress—quite possibly the largest number of calls that had ever been made to Congress in one day. We shut down the lines.
That morning, there was talk that Chaffetz’s DNSSEC objection, encapsulated by his “bring in the nerds” riff, had struck a chord in the committee. He went to Smith, asking for a hearing on the technical and security implications of the bill before voting the bill out of committee, and wasn’t shot down. A concession like this would have been unprecedented. Capitol Hill watchers couldn’t recall a time when a bill entered the markup phase, only to go back for further fact-finding hearings. It was an embarrassing concession by the proponents that they hadn’t done their homework, and a sign of the full retreat to come. Things didn’t have a chance to play out like that. At 1:30 p.m., eleven hours and twenty-eight minutes into the proceedings, Smith took the microphone and announced that the committee would stand in recess, following word of a full House recess.
The following day the House recessed for the year and Congress left town, so the Committee was unable to finish the markup and kicked it over to January.
This was an important development for several reasons. First, I was later advised that over two hundred thousand people watched the telecast or webcast of the markup. Many who watched were apparently unimpressed by the arguments for the bill and by the apparent lack of Internet knowledge shown by some of the pro-SOPA Members of Congress.
That just doesn’t happen: chairs simply don’t try this hard to move bills out of their own committees, advance them to votes in front of audiences of hundreds of thousands—with an unheard-of more than one hundred thousand people said to be have watching the live stream, and myriad others anxiously awaiting the results—and have the whole endeavor melt down before them, leaving them only to stand aside, consider the wreckage, and wallow in alternating despair and denial. Not only did the poor stooge not know that his cause was toast—he was deluded enough to publicly insist that he would bring the bill back before the committee when the House next reconvened, ostensibly to somehow achieve a vote tally in its favor.
It was a shocking, public rebuke for Smith, of the sort that someone of his stature seldom suffers—and we heard through the grapevine that John Boehner and Eric Cantor agreed about the severity of the embarrassment, and that they wanted the Whole Damned Thing shut down.
The result was simply amazing. Normally a couple of dozen people watch a Congressional hearing. But here, more than one hundred thousand Americans watched the legislative hearing on SOPA on the Internet and millions of people signed petitions opposing the bill. At that point, I finally began to believe we could realistically water down or outright stop these bills. Once people started calling Congress, writing letters, and attending town halls to express their displeasure, groups like mine finally had the leverage necessary to start winning.
There were cracks in the armor now: Nancy Pelosi, the leader of the House Democrats, had made her opposition to the bill known on American Censorship Day—via Twitter, no less. We’d collectively steered in a few million more emails to Congress. There was increased resonance among the public.
Capitalizing on the extra time, I did an “Ask Me Anything” (AMA) on reddit.com on December 16, 2011. In this forum, a site which is a favorite community for many of the Internet-savvy, I encouraged folks to contact their Members of Congress, and argued that SOPA was a grave threat to the Internet. I reassured the reddit community that, indeed, their representatives would listen to them if they spoke up.
During the markup, Illinois Democrat and Judiciary Committee member Mike Quigley berated his own constituents as he argued that many SOPA opponents who’d contacted him had “a vision of the Internet that [was] unacceptable.” His office also seemed to think it unacceptable, or unfathomable, that they’d have been inundated with so much concern from their residents of Illinois’s 5th—or that some constituents might even have emailed them twice.
American Censorship Day successfully turned SOPA into a viral sensation, but the bills were still, somehow, expected to pass. Our work served to set the stage for an even larger protest to come on January 18. Coming up, there was still the SOPA committee hearing and a final vote on PIPA in the Senate. Ernesto at Public Knowledge made us well aware that we needed further action, and kept the SOPA list up to date on the latest legislative events. FFTF and its allies went into high gear, seeking to expand the number of participating websites.
The initial House hearing and the markup were action-forcing events that drove spikes in public and social media attention. But after the markup on December 15th and 16th, with Congress in recess, events acquired a momentum of their own. The markup, combined with the buildup to the Senate vote, triggered a categorical shift up in the volume of attention. The next big spike, the planned boycott of GoDaddy (which had issued statements supportive of the bills), came two days before Christmas and arose entirely from the community.
“Walt Disney Co. President and CEO Bob Iger declined the invitation on behalf of content providers. ‘Hollywood did not feel that a meeting with Silicon Valley would be productive at this time,’ said a spokesperson. The meeting took place with only tech companies present. Feinstein, once a reliable vote for the existing version of Protect IP, is now working hard to amend the bill, according to Senate Democratic aides.”
If there was one day that this shift happened, I think it was the day of the hearings on SOPA in the House, the day that we got the phrase “It’s no longer OK to not understand the Internet.” Something about watching those clueless members of Congress debate the bill, watching them insist that they could regulate the Internet and a bunch of nerds couldn’t stop them—that really brought it home for people. This was happening. Congress was going to break the Internet and it just didn’t care.
After the markup, but well before the blackout, we’d already heard from several offices that the volume of constituent contacts that they were receiving had been surpassed only by the immigration reform debate, Obama’s health care reform push, or for many offices, never at all. Even more spectacularly: in the case of the prior debates, America’s sentiments were substantially divided. But when it came to SOPA, something like 99% of us—regardless of party, geography, or ideological self-identity—were on the same side.
Whether or not we’d sunk the bill was still unclear, but the fruits of the campaign were many: it generated over two million petition signers as well as two million emails and eighty-four thousand calls to Congress—four calls per second from Tumblr users alone. Videos and infographics built for the event eventually attracted over six million views and almost three million views, respectively. This was the first major attempt by Internet platforms to mobilize their users en masse. Rep. Zoe Lofgren redacted the logo of her Congressional website. Google, Huffington Post, AOL placed a full-page ad in the New York Times about SOPA.
The idea of an Internet blackout was first seriously floated in a CNET story on December 29th. And it was one of the industry’s leading lobbyists, Markham Erickson, who was quoted in the story, lending added credibility to the report.
January 18th was not initially blackout day. It was actually conceived as the day SOPA opponents would get the hearing they were denied by Lamar Smith two months earlier.
Many Wikipedia users were individually interested in participating in a blackout, and we got the support of the Wikimedia Foundation, but we were told that the decision for Wikipedia to participate in the blackout would require a community-wide conversation and decision-making process. We followed their advice and posted the idea of Wikipedia blacking out on the Village pump section of Wikipedia, where active users congregate to discuss meta-concerns about the site. We crossed our fingers.
I had talked a lot about melting the phone lines, and using the Internet’s communication power to impact Congress. Now, Internet leaders emerged, and the idea of a blackout was considered. A group of sites decided to participate. Along with others, I began to lobby tech leaders to try to increase the size and effectiveness of the blackout. On Monday, January 16th Craigslist jumped the gun and used its platform to sound the alarm about SOPA. I emailed Craig Newmark to thank him and then emailed others in the tech world to urge that they join the cause. I was later told that in the two weeks prior to mid-January, SOPA was the number one news topic for Americans under age 30. Most Americans over age 30 had never heard of it.
Monday, January 9th saw a small burst of Hill activity, with Darrell Issa’s office announcing a hearing before the full Government Oversight Committee on the DNS blocking provisions in SOPA. The hearing would gather some of the most influential anti-SOPA voices from the business community: Union Square Ventures’ Brad Burnham, Rackspace CEO Lanham Napier, and reddit’s irrepressible co-founder Alexis Ohanian. Reddit’s involvement in the hearing is what turned the blackout from a source of speculation into reality. The day after the hearing was announced, reddit posted about their plans to their blog. “Stopped they must be; on this all depends,” was the title. On January 18th, reddit.com would shut down from 8 a.m. to 8 p.m., and in part given over to a live-stream of Issa’s hearing.
As anger on the Internet rose, the ever-energetic reddit community decided to fight back. How? Shut down the site for an entire day. The Wikipedia community then decided to follow suit. As did Mozilla, Google, Tumblr, I Can Haz Cheeseburger, and many, many more. All in all, over eighteen million people took action. Hell, even my mom told me that she “voted” for “privacy” (not quite Mom, but thanks for the support!).
The blackout was still days away, but things were already snowballing out of control. Ultimately, more than one hundred fifteen thousand sites pledged to blackout their sites or prominently display the FFTF widget for 24 hours. This included four of America’s top ten sites by traffic—Craigslist, Wikipedia, Google, and eBay—and 13 top 100 sites. Wordpress (used by over 16% of the top million websites) and Wikipedia blacked out entirely, as did reddit and Craigslist (which to date maintains a victory link on every housing, job, and “for sale” search result). Other major sites like Google, Amazon, Pinterest, and Flickr blocked out their logos and/or displayed links to take public action.
Reading the tweets that bore the #SOPA hashtag that swarmed within our stream, it rapidly became apparent that this legislation would have a chilling effect on sites such as SuicideGirls, which incorporate massive amounts of user generated content. It would be utterly impractical and economically unviable to police the providence of all the links and content posted by our models and members on their blogs and in the countless forums and comments threads prior to publishing. And being forced to do so would seriously stifle the freedom of speech that our community currently enjoys.
Under the restrictive and open-ended terms of SOPA, it would be virtually impossible for a site such as ours to function, which is why we—along with other social media sites such as reddit, Tumblr, Flickr, Fark, and 4chan—participated in the January 18th day of action. Unlike the more editorially-driven sites we love such as Wired, Boing Boing, and Rawstory, as a subscriber-funded online community offering a service to our members, blacking out entirely wasn’t an option on #J18. We therefore had to find other creative ways to protest SOPA, and show solidarity with the sites that were able to go dark.
You could have watched the nightly news every day during these few months, and wouldn’t have known that any of this happened. The progressive watchdog Media Matters noted in mid-January 2012 that none of the major broadcast or cable news networks ever produced a segment on the SOPA/PIPA fight in their primetime coverage. That’s because ABC, CBS, NBC, Fox and CNN all supported the bill.
The Wikipedia community got closer and closer to approving a site-wide blackout on U.S. Wikipedia, with Jimmy Wales going public about his position in support of a SOPA protest: more and more people understood that SOPA would’ve been narrowly destructive of Wikipedia, but also would have undermined other efforts to use the Internet to broaden access to information. (One of the most extraordinary artifacts from the blackout would be the stream of tweets from jilted middle and high school students whose lack of access to the site stymied schoolwork for a day and provided a fleeting glimpse of what life was like in the prehistoric 1990s.)
A number of us had been working for months (some for years) to raise public awareness of the looming threat, but by January 18th it was laughably obvious our collective efforts paid off. Proof? Even Kim Kardashian got in on the action. That night the celebrity most famous for being famous tweeted the following warning to her millions of followers: “We must stop SOPA/PIPA to keep the web open & free.”
We posted a special “Tease of the Day” which featured the gorgeous Arabella Suicide in a set of photographs entitled “Pirate Girl.” Despite the fact that pertinent parts of her anatomy had been redacted with black bars that bore the words “STOP SOPA!” in large pink Helvetica type, it remains to this day one of the most re-tweeted items on our blog. Similarly, other posts explaining the problems with SOPA and covering the deafening #J18 silence count among our most read and shared posts. We also had fun with self-censored tweets containing messages such as “Stop #SOPA Now!!! … Before it to your Internet.”
Wikipedia going dark on January 18 in protest of SOPA and PIPA made the story unavoidable for the mainstream media, but it was volunteer moderators of the most popular subreddits who first advocated for the blackout. Enough moderators agreed to go dark, that the administrative team at reddit announced an overall blackout of the site. They would replace the stream of popular links and discussions with calls to action on how to stop SOPA.
It was a movement indeed. Anonymous redditors pushed reddit into being the first of thousands of sites, including Wikipedia and Google, to take action on that fateful day. Similarly, another redditor suggested a boycott of GoDaddy, which supported the bills for long enough to feel the wrath of a coordinated domain transfer away from their service before relenting and apologizing for backing the legislation. As people called their senators and representatives to argue their position, they shared their stories online, encouraging others to do the same.
On January 18th 2012 the New York Tech Meetup took the lead, as Demand Progress, and allied groups buttressed their efforts to organize an anti-SOPA rally outside of the midtown tower that houses [Chuck Schumer’s] office. We’d concentrate the movement’s focus on the office of this powerful senator, and provide the press with a 3D spectacle that would serve as an accessible representation of the otherwise abstract online activism. Even the likes of Congressman Mike Quigley’s staffers—who literally didn’t believe how many emails they were receiving—would be forced to contend with the concept that there are, indeed, real, live people who care about these issues. The New Yorker’s write-up affectionately (and accurately) called it a “Nerd Parade.”
The effect was immediately felt. That morning, countless members of Congress took to their websites, Facebook pages, and Twitter feeds to announce their opposition to SOPA and PIPA. In the Senate, freshmen Republicans were among the first to announce their opposition, including Scott Brown of Massachusetts, and Marco Rubio of Florida, a key PIPA co-sponsor. Though new opposition that day was overwhelming, there seemed to be a Republican tilt to the early announcements. By 3 p.m., twenty-six of the twenty-nine new opponents of the bills were Republicans
The police extended the barriers away from the stage, so they now ran the whole length of the block. Ten minutes later we’d taken over two lanes of midtown, noontime traffic in addition to half of the sidewalk. Then so many people filled the sidewalk that all the police could do was to keep a clear walkway as wide as a couple of concrete panels: there were more than two thousand of us.
The crowd didn’t quite know what to do: it was easy to catch ambient exclamations along the lines of “this is the first time I’ve ever really protested anything!” These weren’t veteran activists, and nobody had yet invented whatever chants one’s supposed to recite at an Internet rally: this was something new.
First the Republican senators pulled out. Then the White House issued a statement opposing the bill. Then the Democrats, left all alone, announced they were pulling the bill so they could have a few further discussions before the vote.
On January 18th, the Stop SOPA blackout occurred. An estimated seventy-five thousand websites went black in protest. I had my Congressional Web site go dark. Over one hundred sixty-two million people were said to have viewed Wikipedia’s blacked out page. Google put a notice on its famous front page, with a click-through to scholarly analyses of the measures and an easy way to contact Members of Congress. The phone calls started to flood into Capitol Hill offices. All told, an estimated eight million Americans called their representatives and senators to voice their opposition to SOPA and PIPA. The phone meltdown had arrived.
Wikipedia went black. Reddit went black. Craigslist went black. The phone lines on Capitol Hill flat-out melted. Members of Congress started rushing to issue statements retracting their support for the bill. It was just ridiculous.
There’s a chart from that time that captures it quite well. It says something like:
January 14 and then it has this big long list of names supporting the bill, and just a handful of lonely ones opposing it.
And then: January 15. And suddenly it’s totally reversed—everyone is opposing, with just a few lonely people left in support.
By the time January 18th rolled around, even the most dedicated protectors of the MPAA and RIAA scurried away from SOPA and PIPA. I recall warning one staffer weeks before the blackout that the MPAA and RIAA had completely lost the public debate and it would be a really bad idea politically to move forward. The Internet Blackout made it crystal clear to all in Congress that a vote for one of these bills would be political suicide.
By January 23rd, the bills were officially killed when Chairman Lamar Smith announced the indefinite delay of the SOPA markup and Senate Majority Leader Harry Reid (D-NV) pulled PIPA from the agenda in the Senate.
We killed the bill dead. So dead that when members of Congress propose something that even touches the Internet, they give a long speech beforehand about how it is definitely not at all like SOPA. So dead that when you ask Congressional staffers about it, they groan and shake their heads, like it’s all a bad dream they’re trying hard to forget. So dead, that it’s hard to believe this story.
In the post-SOPA spin cycle, some in the media were keen to paint this as a pitched battle between big content and big tech. The corporate entertainment industry was happy to play along, painting a conspiratorial picture of the protests. This was far from the case. First, the entertainment industry had quite a head start in terms of lobbying, having already poured millions of dollars into Washington before most of the tech companies even showed up. Second, the opposition to SOPA (and to a lesser extent, PIPA) was diverse, diffuse, and powered from the bottom-up.
Hard to remember how close it all came to actually passing. Hard to remember how it could have been any other way.
First, SOPA and PIPA’s opponents were united. The fact that all the technical experts and engineers who weighed in opposed the bills was weighed heavily. Second, we marshaled detailed arguments. Using that technical background to our advantage, we were able to present a detailed case for why SOPA and PIPA broke the Internet, laying out networking and cyber security concerns that were not initially obvious. Opponents were more communicative and open—something also seen in the media—and proponents more circumspect and reluctant. Finally, we knew who our targets were.
Congressmen will always be dependent upon their funders. That’s human nature. But we can change who their funders are. Rather than a tiny fraction of the 1%, we could create a system in which we all are the effective funders of political campaigns—whether a system of public funding, like most other mature democracies, or a system of “citizen funding,” where all citizens, but only citizens, contribute to the funding of campaigns. Imagine, for example, that every citizen had a $50 democracy voucher that she could give to any candidate who agreed to fund his or her campaign with vouchers plus contributions limited to $100. That system would produce an economy of influence radically different from the one we have today.
In many ways, the goal of intellectual property enforcement could be made easier by taking a hard look at how music and other creative content is licensed. What we want are more legal services that compensate artists and where fans can find the music they love. This will require figuring out how to more quickly and efficiently get large catalogs of music from service to user.
One of the main victories of the fight against SOPA/PIPA was the realization by many artists that they are also copyright holders, and that the Internet offers them an opportunity to exercise these rights however they choose. The work around SOPA/PIPA showed the world that copyright holders are not necessarily large media companies. Instead, copyright holders are a diverse group that will not all make the same decisions on how to manage their rights. Many artists understood, perhaps for the first time, that being a copyright holder doesn’t mean you want to or have to wall your art off and make people pay for entry.
An independent Government Accountability Office report in April 2010 showed that no reliable evidence or statistics exist to support the extreme claims of the entertainment industry of about $20 billion in losses from online copyright infringement. The entertainment industry has actually thrived over the last decade and is not suffering from Internet abuse, as is sometimes claimed.
The striking fact about the SOPA/PIPA victory was that it was essentially cross-partisan. It was the Cato Institute as well as Demand Progress. It was net business as well as Wikipedia. There was no Left/Right valence to the fight against this Internet censorship. There was instead a brilliant campaign that succeeded in neutralizing those differences enough to allow all of us to focus on our common enemy.
That in itself was an amazing victory. And if we learn anything from the SOPA/PIPA fight, we should learn how to do that again.
It wasn’t a dream, or a nightmare. It was all very real. And it will happen again. Sure, it will have a different name, and maybe a different excuse, and probably do its damage in a different way. But make no mistake. The enemies of the freedom to connect have not disappeared. The fire in those politicians’ eyes has not been put out.
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.
What we saw in SOPA and PIPA was an attempt to make Internet policy from a narrow perspective, with little if any input from the community of people who best understand and care about how the Internet actually works. One of the key reasons we were successful in defeating these bills was that the community spoke up anyway. Millions of Internet users all over the country—indeed, all over the world—demanded that their concerns be heard. Imagine how much better Internet policymaking could work in the future if the public—and the experts—are included in the discussion from the start.
My main disagreement with the current state of the copyright debate is that the political balance is tilted too much in favor of content owners to the detriment of Internet innovation. Hollywood and the United States seem to be picking and choosing who they like and don’t like and that does not provide for the fairness, due process, and predictability that dual use technology companies like Megaupload need to grow and thrive. I believe it would be better for society to allow breathing room for Internet innovation. This case is at its core not about a criminal issue but rather an economics and political debate that is better suited to be dealt with in Congress.
There are a lot of powerful people who want to clamp down on the Internet. And, to be honest, there aren’t a whole lot who have a vested interest in protecting it. Even some of the biggest Internet companies, to put it frankly, would benefit from a world in which their little competitors could be censored. We can’t let that happen.