Meeting with a Supporter of PIPA on Capitol Hill
I will not provide names of any individual staffer I met with, but I want to give folks a peek into how policymakers view these things. Congressional staffers who work for a particular Member of Congress who supported PIPA did not believe there were legitimate concerns about free speech, censorship, cybersecurity, or excessive litigation that we believed the bill would cause. The lobbyists for the bill were very effective at portraying anyone that opposed them as people who did not take piracy seriously and believed that it was fine for artists to have their content stolen. The lobbyists would paint our concerns as just gimmicks to stop the bill, which naturally would make it very hard to be taken seriously if you actually believed that to be true.
Often after raising the fact that the mechanisms in the bill would take down lawful content with unlawful content, the well-trained response would be, “Do you expect us to do nothing to stop piracy?” Sometimes the discussion would degrade into arguments over whether the government should just stand idly by while grandma purchased bad drugs on the Internet and subsequently died—the lead sob story lobbyists used to make the case for passage. In other instances, concerns would be met with the flagrant disbelief that the government could ever harm an innocent in going after criminals (this was before the Dajaz1.com story came out). The mental block to taking these issues more seriously revolved around their belief that PIPA was a good bill and the arguments against PIPA were somehow out of touch. After all, if PIPA was really that bad, wouldn’t the public be complaining to Congress about it?
The worst part of these discussions revolved around Domain Name Server (DNS) filtering, which would essentially allow the government to reroute the roads of the Internet (though never actually taking down the infringing content). The bill’s sponsors were dealing with the fundamental nature of the Internet but had no idea what they were doing. It is also ironic that my point that users could just bypass that filter in seconds with a plug-in or a router setting change, was met with skepticism. I commented to a friend of mine that perhaps I need to bring sock puppets to explain the difference between DNS, Domain Names, and Internet Protocol Addresses.
Now I do not fault anyone for lacking the basic understandings or a router or a broadband modem, but I do fault the lobbies in favor of filtering for exploiting it. Having spoken with engineers who work with law enforcement and deal with cybersecurity on a day-to-day basis, it was breathtaking to me to see how a mixture of technological ignorance and blind faith in the MPAA and RIAA lobby could be so dangerous. Despite countless hours of intense research done by the Center of Democracy and Technology on how DNS filtering would harm our national security and Public Knowledge’s own understanding of the international implications on human rights should the United States adopt filtering as a policy choice, this provision almost made it into law.
This was only possible because the content industry’s lobbyists engaged in a very sophisticated game of misinformation. I summarized in detail the extent of their misinformation campaign on DNS filtering in a blog post. 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.
For those keeping count, more than one hundred forty 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.
Now, all things being equal, my arguments would win and theirs would lose. But keep in mind that the content industry, through their access to campaign cash and dozens of lobbyists, was able to gain direct access to Members of Congress to spin their story, while my capacity to inject the truth was limited to just me and a few other public interest advocates. Simultaneously, in order for our concerns to reach the attention of Members of Congress, the public needed to force them to care.
Meeting With a Skeptic on Capitol Hill
Only a very small number of people in Congress were actually hardcore supporters of SOPA and PIPA. A substantial majority of staff were skeptical about the effectiveness and the constitutionality of the proposals. The challenge here, though, is that true courage on Capitol Hill is scarce—particularly if the public is silent. This is not the fault of any staffer or legislator, because I think most of us tend to conform to what seems to be inevitable. Rather, a lot of Capitol Hill operates on a “safety in numbers” mentality because it is politically safer to be with a group. That is why it is so rare to see individual senators stand up on any particular issue (with some rare exceptions).
Congressional staffers are also responsible for both informing their boss and protecting their boss on a multitude of issues. In debates where the public is silent, the issues the players in these offices often concern themselves with are determined by the influence lobby and campaign money that is prevalent in the political system. If they do not have the confidence that the public will have their back in a tough election—especially in the age of Super PACs—because they did the right thing, they will almost always do the wrong thing. 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?
Some may wish the system worked differently and that Members of Congress, on their own accord, would always do the right thing for the public. But I will tell you that this will never happen in a representative democracy if the public itself does not stay informed and engaged with their government. This is why the only players that want you to believe you do not have the power to make your Congress work for you are the very players in Washington D.C. who rely on your silence. The deaths of SOPA/PIPA are proof.
How the Public Saved Congress from SOPA and PIPA
On October 26, 2011, having captured nearly forty senators into supporting PIPA, the content lobby got greedy and pushed the House Judiciary Committee to create the abomination known as SOPA. Throughout the drafting process of SOPA, the public interest community (regardless of political affiliation) was shut out of the process and only major corporations were consulted with a heavy bias towards the movie and music industry. This process was so closed and lopsided that Republican leaders like Rep. Darrell Issa (CA) and Rep. Jason Chaffetz (UT) came out fiercely in opposition to the bills.
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).
When SOPA was released, Public Knowledge created a quick chart highlighting differences and similarities between it and PIPA.
At the same time, I was hopeful that this overreach would garner the public’s attention because, at this point, we were losing on Capitol Hill. At this point, the po
werful coalition of those of us working in Washington, with our fabulous allies working online and in the rest of the country, began to show its influence as they began to show the public what was going on with those bills.
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.
Now, meetings with offices revolved around the discussion of what needed to come out of the bills in order to address the free speech harms, the cybersecurity issues, and the cost of excessive litigation. I even had one staffer preemptively call me before my meeting to tell me that their boss would oppose the bills and questioned whether we needed to meet at all (but we met anyway so I could explain the specific problems). It was now politically necessary for all of Congress to find out what the Judiciary Committees were pushing, but only because voters back home were both upset and engaged. Once Members of Congress realized it would be wildly popular to be against SOPA and PIPA, they begin instructing their staff to pro-actively contact opponents for more information.
Believe me, when an office receives even one hundred letters on an issue, it garners a lot of attention from the Member of Congress. Having worked on Capitol Hill for more than six years, I can say it is absolute fact that many Members of Congress actually read the emails they receive from their constituents. Some even take the time to make personal calls back if the email or letter is personally impactful. One of the most memorable instances of this during the SOPA debate was when Rep. Steve Cohen (D-TN) spoke about the college student who started their own web business and was afraid that SOPA would bankrupt their dream. Your story and your engagement will always have an impact.
The Final Days of SOPA and PIPA
The floodgates were open. Throughout November, as the House Judiciary Committee held its lopsided SOPA hearing (five witnesses for the bill, one against) and the Senate prepared to vote on PIPA, more and more people around the country responded to the information we and our allies were sending out. People around the country also became more aware of the injustice of the legislative process with their own eyes. The House Judiciary Committee started two days of voting on the bill, but due to the heroic efforts Rep. Darrel Issa (D-CA), Zoe Lofgren (D-CA), Jared Polis (D-CO), and Jason Chaffetz (R-UT), opted to wait on finishing work on the bill until after the Christmas break. The Internet Blackout was scheduled for the day the Committee voting would resume, as well as for the planned Senate vote the next week, the week of Jan. 24. I did my part by explaining why the 24th of January was so critical to the entire process and laid it out to the coalition that we either won this fight or lost it on PIPA, not SOPA.
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 that the MPAA and RIAA had completely lost the public debate and it would be a really bad idea politically to move forward. I gave this warning with confidence because, at this stage, many offices had received on average more than two thousand letters and emails from their voters—a number that had only occurred in response on issues like the Iraq War or privatizing Social Security. The Internet Blackout made it crystal clear to all in Congress that a vote for one of these bills would be political suicide.
While Public Knowledge and other organizations spent countless hours in strategizing, organizing, distributing information, meeting with Congress, and initializing other components of a national campaign, we were never going to win this fight without your participation. It is only due to your willingness to pick up those phones, tell your friends, write those emails, and visit those town halls that SOPA and PIPA died. I hope that my story will help show you the transformative impact your engagement had on the legislative process because it is possible that the next copyright war will actually not be a war at all but rather a positive agenda for innovation and the Internet. In order for that to be the future, though, you the reader must remain informed, active, and engaged with your government.
TO THE WHITE HOUSE
DAVID SEGAL AND DAVID MOON
In mid-January members of President Barack Obama’s administration delivered a serious blow to SOPA/PIPA by announcing their opposition to the bills on the White House blog. The administration had recently launched a new website allowing Internet users to create online petitions to the President, and officials promised a response to any efforts that quickly generated at least twenty-five thousand signatures.
On December 18, 2011 a petition emerged with the title, “VETO the SOPA bill and any other future bills that threaten to diminish the free flow of information.” In a short period, fifty-one thousand six hundred eighty-nine people signed the petition and triggered a response from three key administration figures: Victoria Espinel, Intellectual Property Enforcement Coordinator; Aneesh Chopra, U.S. Chief Technology Officer; and Howard Schmidt, Special Assistant to the President.
On January 14, 2012, the three Obama officials wrote that the administration would “not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” The increasingly hobbled SOPA/PIPA bills now faced public opposition from the White House.
On January 14, 2012, the Obama administration responded to a petition against SOPA/PIPA with a post on the White House Blog. Three key administration officials stated that they would not support legislation that reduces freedom of expression.
What many did not know was that Obama’s team had been signaling their concerns with SOPA/PIPA for a month or two prior. In late November, Demand Progress reached out to the White House, and received a surprisingly gracious response. After months of email campaigns, phone calls, and public criticism of the pair of legislative proposals, our coalition of Internet freedom advocates was granted a December 9th meeting with Espinel. Our conversation buttressed a series of face-to-face discussions between White House officials and concerned venture capitalists and web platform proprietors.
We pulled in groups like Avaaz, MoveOn, and Reporters Without Borders, delivered hundreds of thousands of petition signatures to the Obama administration, and expressed our concerns about the various free speech and human rights implications of SOPA/PIPA. It was a bit surreal to find ourselves invited to the Executive Office Building to meet with White House staff after months of insistence by insiders that our pleas were falling upon deaf ears. But we could tell at our December meeting that the bureaucrats were beginning to actually listen to what we were saying. Somewhat to our surprise, this was more than a perfunctory endeavor whose purpose was simply to check off the box next to “meet with those annoying activists” on the White House’s to do list.
For example, our sit-down with Espinel was attended not only by her colleagues with intellectual property-related job titles, but also by officials like Carl Shapiro, then a member of the White House Council of Economic Advisers. The grouping of Obama officials asked our ragtag coalition of free speech advocates to cite which portions of SOPA/PIPA we saw as particularly problematic and gauged our support for various potential fixes. The day after the meeting, I contacted a reporter about the interaction and noted that I thought the White House officials “showed genuine interest in hearing what the groups had to say.” As it turns out, they ended up siding with our side. It’s hard to know exactly how these decisions were made, to what extent the various in-person meetings might have had an impact above and beyond the regular rhythm of emails, petitions, and concerned phone calls the White House was receiving. But with the focus of hindsight, this feels like a healthy reminder that taking the online
protests offline can sometimes be a useful exercise.
White House IP Czar Victoria Espinel (top, center) was presented with petition signatures against SOPA/PIPA from millions of Internet users on December 9, 2011. Espinel along with other administration figures like Carl Shapiro from President Obama’s Council of Economic Advisors (bottom, left) listened to concerns from Demand Progress’ David Segal (bottom, right) and other public advocates.
A few weeks later we received a note from Espinel as the White House released its statement:
David—thanks again for organizing the group you put in. We just put out an official response to the concerns raised in We the People that I think you will be interested in.
Demand Progress has been, and will remain, a vocal critic of the Obama White House relative to its record on a number of civil liberties issues: from the extension of warrantless wiretapping authorities to its support for the P.A.T.R.I.O.T. Act; from its drone wars to its defense of the recently enacted power to indefinitely detain civilians without charge or trial. But the administration deserves credit for the even-handed manner in which it addressed activists’ concerns about SOPA/PIPA and for its eventual opposition to the bill. White House response to anti-SOPA/PIPA petition:
COMBATINC ONLINE PIRACY WHILE PROTECTING AN OPEN AND INNOVATIVE INTERNET
By Victoria Espinel, Aneesh Chopra, and Howard Schmidt
Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.
Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet Page 23
