Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet
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Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act, and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.
While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cyber security risk, or undermines the dynamic, innovative global Internet.
Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.
We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.
Let us be clear—online piracy is a real problem that harms the American economy, threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.
This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.
So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration.
The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.
Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.
Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget
Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy
Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff
ON THE WHITE HOUSE’S STATEMENT
DEREK SLATER
Derek Slater is a Policy Manager on Google’s public policy team, where he helped lead Google’s anti-SOPA advocacy strategy. He supports the company’s global advocacy efforts on innovation policy, including copyright and telecom. Derek has been writing about digital media since he bought a Diamond Rio PMP300 MP3 player as a teenager. This contribution reflects his opinions, rather than those of Google. It’s adapted from an essay he wrote immediately after the White House released its statement on SOPA/PIPA.
Today, the Obama Administration said that any new IP enforcement legislation must be narrowly tailored to a compelling interest and must meet strict yet carefully designed specs. It also said that (1) countries can balkanize the Internet along the lines of commerce, but it must leave the global, non-commercial speech, creativity and innovation of the Internet alone, and (2) governments should not regulate online content businesses through the network and code layers of the Internet, or through non-commercial content layer activities. The Administration laid down these principles to protect job creation, innovation, creativity and free expression.
The White House showed immense courage today, and now we’ll see if it has real leadership. After all, the White House’s statement today on piracy and an open Internet can only be measured in historical perspective, based on the impact it ends up actually having.
How might we measure this impact?
One way is through comparison, and in this case the right baseline is former FCC Chairman Michael Powell’s Internet Policy Principles, which became the foundation for those who support the end goal of network neutrality (even though this large group disagreed on whether to accomplish this through law, market competition, norms, and/or code). Five years down the road, will the White House’s statement have had as much influence? Will it have been repeated as many times by other policymakers, third parties, media, and the public? Will Victoria Espinel become a champion for the Internet? Will it have been the foundation for both policy and norms, nudging the market gently in the right direction without being overly prescriptive or demur?
Another way to measure is more direct: what actual policies are (or are not) implemented? This measurement is more difficult than it sounds, because the White House included many lawyer weasel words throughout—they’re against censorship, but they hedge a little bit on search engines (despite the fact that data shows this is both an ineffective and bad vehicle for regulation: http://www.techdirt.com/articles/20111130/05022316931/data-shows-removing-rogue-sites-search-wont-make-much-difference.shtml), and they’re only against “overly broad” private rights of action.
That said, the Administration laid down what appears to be a pretty clean Line of Demarcation: “new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws
, and be effectively tailored, with strong due process and focused on criminal activity.”
Let’s break this all the way down:
(A) “Must be”—not could be, not should be, but a mandate.
(B) “Narrowly targeted”—focused on a specific, defined, measurable problem, like in strict scrutiny under First Amendment law.
(C) “Only at sites”—only, not some of the time, but all of the time, new enforcement legislation must be focused at sites that meet all of the following qualities …
(1) “Beyond the reach of current U.S. law”—in other words, they won’t show up and be subject to jurisdiction in a U.S. federal court.
(2) “cover activity clearly prohibited under existing U.S. laws”—which means that new legislation should not substantively increase copyright’s penalties or create new systems of liability. Liability and penalties in copyright law have reached their upper limit, and shall go no further.
(3) “and be effectively tailored”—remember, strict scrutiny! And it also has to actually be effective at addressing the identified problem.
(4) “with strong due process”—I think here they mean taking into account fundamental rights, like freedom of speech. If they only meant procedural due process (ie, notice, time, and information for the accused to respond), they would have just said “procedural.”
(5) “focused on criminal activity”—related to criminal copyrighted infringements, which is a higher standard than typical civil actions.
To play it back, “new legislation (A) must be (B) narrowly targeted (C) only at sites (C1) beyond the reach of current U.S. law, (C2) cover activity clearly prohibited under existing U.S. laws, and (C3) be effectively tailored, with (C4) strong due process and (C5) focused on criminal activity.”
If you compare this standard to other attempts at governments setting Internet policy principles—for instance, the OECD’s recent statement—then the U.S. Administration was quite a bit clearer. In relative terms, it’s a straight talk express.
They also went substantively further by demarcating a line in the sand across which Internet regulation shall not pass.
If I read it correctly, the Administration is saying IP enforcement could go as far as the OPEN Act, but no further. Abstracted up a layer, the Administration is saying that in some cases, it may be ok to balkanize the Internet when it comes to commercial transactions. The U.S. can make decisions about how foreign businesses and Americans exchange money with one another—in other words, the guts of trade policy. But the U.S. must not take actions to prevent an American from engaging and encountering Chinese speech, creativity, and innovation—just as we would say China should not prevent its citizens from engaging and encountering Americans online.
That isn’t just an Internet Policy Principle. That’s a Global Internet Policy Line of Commercial/NonCommercial Demarcation.
The roots of the Internet are non-commercial. It came from academia. The Web was built on open standards and open code. It has given rise to open content.
All of this non-commercial activity provides the infrastructure for a huge commercial ecosystem. All the jobs and economic growth generated by the Internet industry are built on top of this non-commercial infrastructure. This is a hybrid economy.
The Administration said today that this infrastructure must remain open and innovative, and governments should never seek to regulate online content layer businesses through messing with underlying infrastructure, whether non-commercial content layer activities, or the code and network layers of the Internet.
PROPOSAL TO REACH CONSENSUS ON STATEMENT AGAINST THE STOP ONLINE PIRACY ACT
OCCUPY WALL STREET
SOPA and PIPA became key concerns of many of the activists across the country who’d gathered under the Occupy Wall Street banner. Many protestors had already been confronted by attempts by corporations and governments to prevent their peaceable assembly in the public square. It was easy to analogize the ramifications SOPA and PIPA would have for the web. Note the 99% OWS messaging in the SOPA protest sign above.
The accumulation of power is a tyrant’s wont, and the defense of liberty is a citizen’s sacred duty. It is inside the dialectic of these forces where the arc of human drama unfolds. Our story is long, and our progress has been great in our march towards a freer world. Yet much of our motion has been in retrograde—each epoch of our history eventually regresses into a gradual ceding of much that’s been accomplished. Humanity is either profoundly patient, profoundly lazy, or both. We tolerate much, and revolt very little. Yet, from time to time, the abuses of a government against its people become impossible to bear. From time to time, we reverse course, and once again make great strides in our quest for true justice. When the arrogance of the powerful reaches a critical point, the apathy and lethargy and complacency with which the people are programmed can vanish quickly. We are here to sound a warning to those within the barricades of wealth and power: reverse course, or wake the sleeping giant of the true body politic.
The erosion of our essential liberties has been slow, and at times subtle, but it has also been constant and insidious. Nearly complete disenfranchisement of the general populace has been achieved via social, political, economic and environmental means. We gather here in defense of our treasured rights. We know that these rights are natural and god given, and we will not allow them to be subject to the will and whim of a shadow government or kleptocratic cadre. We will defend them to our death rather than live under the yoke of plutocratic despotism. Yet, we still believe that reparation can be achieved through means political and civil.
Though the string of trespasses which we protest is long, we wish to voice our grievances with the ruling regime in no uncertain terms. In the name of the American people, we beseech those who supposedly serve our interests to oppose the passage of HR.326 and S.968. Should these bills become law, our nation will transgress a line of moral sanity from beyond which it will be difficult to return. In the hope that we might still preserve and restore our republic, we implore our representatives to oppose these key pieces of legislation.
HR.3261 is the Stop Online Piracy Act, and S.968 is the Protect IP Act. The provisions of those bills would make it possible for the judiciary to censor content on the Internet with exceedingly low burdens of proof, and extremely high risk of collateral damage. It is the consensus of leading technology and civil liberties groups that the authors of these bills had little regard for the technical reality of our telecommunications systems or the rights of the populous to freely express itself. Multinational corporations have used the U. S. Chamber of Commerce and Motion Picture Association of America to lobby heavily for these pieces of legislation—exerting their corrupting influence in the halls of power, so that our duly sworn servants might act against the interests of their constituencies. While a desire to stop the piracy of intellectual property may be justifiable, it is clear to the leading technologists of our day that the legislation in question would not do so. We will not once again allow ourselves to be fooled by the doublespeak of lobbyists and their puppet politicians. We will no longer look the other way.
Over the course of the last decade, much damage has been done to the moral fabric of our democracy. Longstanding principles have been breached. Those in power have shown their colors as self-appointed lords who think it justified to capture, detain, torture, and execute individuals anywhere on the planet. We have become a nation that spies upon its own citizenry, without need for warrant or subpoena. Dissent is quashed, vast swaths of the population are incarcerated and systematically undereducated, laws are bought and paid for. We seem to have forgotten, as a nation and as a people, that the only justified derivation of sovereignty is the voluntary association of free individuals. Recent events around the world strengthen our belief that a government sustained by the practice of coercion will not last. We are hopeful that we can repair this damage through means that are political and peaceful. A great deal of this hope lies in our newfound ability to communicat
e globally by means of digital transmission. We caution the so-called servants of the public that the ongoing and aforementioned attempts to legalize censorship of the Internet would spell moral ruin for our government, and disaster for our nation.
To the soul of any faithful citizen, the first part of this new millennium has been painful. We have watched as our nation’s legislators have proven themselves to be myopic and guided by corrupt influence. By all accounts, they no longer fulfill the role envisioned for them in our Constitution. They do not represent the interests of the many. The essential checks and balances required of the executive and judicial branches have similarly failed, as the power of such great wealth concentrated in so few pervades all levels of government in their interlocking dependencies. It is natural to be humbled by failure. That humility propels evolution towards success. Though we see no evidence of it, we hope that those in power will be humbled by their failure, will awaken to their mandate, and will turn to the many for guidance.
We are still, in the words of Lazarus, the huddled masses yearning to breathe free—yet in this age of information, our yearning has taken a new shape. We yearn to share, to exchange ideas—to realize our common humanity, and in so doing transcend the ultimately destructive impulse of nationalism and narrow self-interest. Therefore, we will protect with all our might our right to have unfettered access to free speech via the Internet. At this critical hour in our history, we consider that right to be, in essence, concomitant with those still inalienable rights acknowledged in the Declaration of Independence—to life, liberty and the pursuit of happiness.
It is not too late to save the soul of our state. It is not too late to turn back from the route of corruption and tyranny, but it must begin now, and it must begin by recognizing the critical importance of our ability to associate and exchange ideas in cyberspace. Any attempt to abridge our ability to do so will be viewed as an attack on our natural rights, and an egregious misstep. SOPA and Protect IP are horrendously crafted and dangerous pieces of legislation that will not achieve the ends purported by their corporate backers, but will endanger liberties most prized. They must not become law.