Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet

by David Segal, Patrick Ruffini

  As would happen numerous times over the coming days, things acquired such momentum that they kept going even when their initial impetus was gone. Now firmly on the defensive, Lamar Smith and Patrick Leahy had begun to suggest they would cave on the bill’s key provisions, including the content industry’s Holy Grail, DNS blocking.

  The events of January 13th, a Friday, were a body blow to both SOPA and PIPA. In the Senate, Republican supporters of the bill had issued their letter urging Reid to go slow. In the House, Lamar Smith would announce that DNS blocking would now be removed from SOPA. As with his Manager’s Amendment in December, this did nothing to slow the momentum behind the opposition, but it was one of two factors which led Issa to postpone his planned January 18th hearing.

  That Friday night, Issa issued the press release effectively declaring SOPA’s death in the House. Eric Cantor, the House majority leader, intervened to dampen SOPA’s movement through the House, assuring Issa that no bill would move to the floor without broad consensus from Republicans—which SOPA clearly lacked. Issa’s statement read, in part:

  While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote. The voice of the Internet community has been heard. Much more education for Members of Congress about the workings of the Internet is essential if anti-piracy legislation is to be workable and achieve broad appeal.

  Earlier tonight, Chairman Smith announced that he will remove the DNS blocking provision from his legislation. Although SOPA, despite the removal of this provision, is still a fundamentally flawed bill, I have decided that postponing the scheduled hearing on DNS blocking with technical experts is the best course of action at this time. Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks.

  Issa’s statement spoke to a real sense that the Internet had focused too much energy on killing the House bill, while the content industry’s clearest path to victory lay in sneaking the less objectionable PIPA through the Senate. At a basic level, this is seen in the Twitter traffic, which mentioned SOPA at far higher rates than PIPA. Early on, there was some concern from organizers on our side that the grassroots wouldn’t get the message, allowing PIPA to sneak through. The community, though, pivoted hard towards PIPA and Senate action in the final days.

  On Saturday morning, activists awoke to the news of a White House statement opposing the bills in their current form. Numerous SOPA/PIPA-related petitions on the White House’s We the People website had reached a minimum threshold of twenty-five thousand needed for an official response. And when that response came, it seemed strategically calculated to bring the runaway train to a screeching halt. At this point, only the Democratic leadership in the U.S. Senate had any plans to take up the issue, and a White House statement served as a strong signal that the President had no intention of signing an election year bill that would alienate an increasingly important constituency, the tech community.

  The next day, Reid was compelled to address the issue on Meet the Press, biding his time and talking up the prospect of further compromise. Reid’s statement exemplified how legislative talk could so often be detached from facts on the ground. First, he suggested that California’s Dianne Feinstein, a PIPA cosponsor who nonetheless had barely uttered a word about it, was serving as a sort of emissary between the two great industries in her state. He then expressed hope for a Manager’s Amendment from Leahy that would make the bill palatable to all sides. Yet, neither side saw compromise as a possibility. Defenders of the bill had been totally cowed by this point, thus the talk of compromise, but the reality is that both sides saw this as an all-or-nothing fight-to-the-death, one that the Internet was now winning. And the most likely outcome was no bill.

  At midnight eastern time on January 18th, Google, Wikipedia, reddit, Mozilla, Wired, the Huffington Post, and thousands of other websites went dark or carried some prominent acknowledgement of the historic blackout. And Wikipedia, often one of the top search results on Google, became the biggest site yet to urge its readers to contact Congress directly.

  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., 26 of the 29 new opponents of the bills were Republicans.

  A word cloud of blackout day statements from U.S. Senators and Representatives, as quoted by ProPublica’s SOPA Opera project.

  The blackouts were not the final word. Proponents were shaken, but determined to forge a compromise, still not realizing that no bill named SOPA or PIPA, or of the same genre, could ever pass—even without DNS blocking. In Washington, the process of haggling, of back-and-forth, of amending, was how you got things done. Yet the process over the last year had been so broken that scrapping the bills was now the only acceptable outcome for the online community.

  The prospect of a vote on January 24th lingered on for a day after the blackout. Senator Jon Kyl, the Republican whip from Arizona, was working with Leahy in an attempt to broker a compromise. Even with the other Republicans on Judiciary jumping ship, Kyl’s efforts had emboldened Reid to keep the process going. Finally, on the evening of January 19th, Mitch McConnell, the Republican leader, issued a statement urging Reid to withdraw the bill from consideration. On the morning of January 20th, this statement came from Reid’s office:

  In light of recent events, I have decided to postpone Tuesday’s vote on the PROTECT I.P. Act.

  There is no reason that the legitimate issues raised by many about this bill cannot be resolved. Counterfeiting and piracy cost the American economy billions of dollars and thousands of jobs each year, with the movie industry alone supporting over 2.2 million jobs. We must take action to stop these illegal practices. We live in a country where people rightfully expect to be fairly compensated for a day’s work, whether that person is a miner in the high desert of Nevada, an independent band in New York City, or a union worker on the back lots of a California movie studio.

  I admire the work that Chairman Leahy has put into this bill. I encourage him to continue engaging with all stakeholders to forge a balance between protecting Americans’ intellectual property, and maintaining openness and innovation on the Internet. We made good progress through the discussions we’ve held in recent days, and I am optimistic that we can reach a compromise in the coming weeks.

  Minutes later, Lamar Smith would do the same, postponing House activity. Though talk the bills might be revived would linger on for weeks, SOPA and PIPA were finally dead. As I was walking down the sidewalk on the way to the office, I got an email with the news. I immediately opened up Twitter and tapped, “Internet 1, Congress 0.” Politico.com would use this tweet as their main headline that day.

  CHAMPIONING TECHNOLOGY AND FREE SPEECH IN CONGRESS WAS LONELY … BUT NOT ANYMORE

  REP. ZOE LOFGREN

  Rep. Zoe Lofgren was one of the few early opponents of SOPA/PIPA in Congress. She was rewarded for her opposition with starring roles in amusing memes like the one above.

  Congressmember Zoe Lofgren represents California’s 16th congressional district, serving since 1995. She is a member of the Democratic Party. She is a longstanding leader on matters of technology policy and was an early and vocal opponent of SOPA and related legislation.

  In the latter half of 2011, passage of the Stop Online Piracy Act (SOPA) legislation seemed certain, despite my opposition and the opposition of a
few other Members of Congress. Yet by January 2012, Internet activists were popping the champagne to celebrate the end of what was probably the greatest threat to online free speech and an open Internet ever seriously considered by Congress. What happened?

  I was one of the few who saw the threat coming long before the proposal became widely known; I worked for many months on efforts to stop the bill. In the end, the successful effort to stop SOPA, with millions of people participating, was a remarkable moment in U.S. political history. Will its legacy be a path forward for ensuring Internet-related innovation and economic growth continue? Only if we work to make it so. The job is by no means over.

  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. In fact, for 16 years on the House Judiciary Committee, I found myself with only one reliable ally there in this effort, Congressman Rick Boucher (D-VA). Then in 2010 he was defeated by a conservative Republican.

  Congress obviously can’t create technology, but the laws we establish can help foster innovation, growth, and investment in research. It can empower and spur entrepreneurs to create new industries. Laws can determine how technology is permitted to develop. They can, if ill-considered, also put the brakes on all of these desirable matters.

  For instance, at one time the question was whether to treat “cached” content used to speed up Internet browsing as a copy requiring permission and payment for use under copyright law. At first I thought this was some sort of joke, but it was an actual, although uninformed, proposal. Fortunately, this provision was not included in the Digital Millennium Copyright Act (DMCA) which President Bill Clinton signed into law in 1998.

  To understand SOPA, it’s important to understand the landmark DMCA legislation. One critical provision of the DMCA is its safe harbor, notice, and takedown provisions. The basic idea is that web sites, Internet service providers, search engines, social networks and the like aren’t liable under copyright law for infringement by third parties—unless they have been notified by the copyright owner and refused to take down the infringing material.

  Although these DMCA provisions were crafted when dial-up was the norm, a cell phone could not access the web, and a social network was The Well, not Facebook, they proved to be essential. Had this framework not been in place, it is hard to imagine that the technology we now take for granted could have been developed. Venture capital is shy about investing when the expected return on investment is threatened by money damages and endless copyright litigation over the actions of third parties who can’t be controlled.

  After the DCMA, there was an explosion of new technologies, products, and services. With these innovations came a hunger for more content. The technological changes upended existing business models and kicked off a transition period where new and traditional industries are trying to adjust to each other and locate their place in our economy, culture, and regulatory system. SOPA was one product of this transitional angst, reflecting primarily the effort of older industries dependent on selling content to obtain protection at any cost from insurgent technologies that were upending their old business models.

  In addition to protecting free speech, the First Amendment also protects the right of people to “petition” their government. Over the decades, content owners have vigorously pursued this right, seeking wide ranging copyright enforcement laws that have often seemed to lack any concern about the impact on technological development.

  The movie studios and record labels have every right to lobby Congress for what they think is in their interests. And they’ve been smart in reaching out to other, less interested parties, like the Chamber of Commerce and the AFL-CIO. By creating broad coalitions with groups not normally known to work together, expansive measures like SOPA have been pitched to both Congress and the public alike as “mom and apple pie” legislation that “everyone” is for.

  In fact, I agree that artists and innovators deserve to be paid for their work. But one-sided arguments typically don’t lead to good and balanced legislation. And for most of the last 18 years that has typically been the case when it comes to expanding copyright enforcement.

  Technology companies, which might be expected to speak up for a free Internet, often had other fish to fry. Non-profit groups often gave thoughtful analyses, but did not bring much large-scale public support with their arguments. And of course, neither of these had the political clout that studios and labels had built up over the decades. While young technology companies were still gaining political awareness, movie studios and recording labels had decades of experience when it came to understanding and navigating Washington.

  In the fall of 2010, after the midterm elections when Democrats lost the majority in the House of Representatives, it looked to me like the copyright maximalists would be going for broke with a new legislative proposal that threatened online innovation, privacy and free speech rights. SOPA’s predecessor, the Combating Online Infringement and Counterfeits Act (COICA), had been introduced by Senator Patrick Leahy (D-VT). I was an early and outspoken critic, especially of the Senate Judiciary Committee for rushing it forward.

  COICA was a clear signal of where this was heading. Forces were aligning to push sweeping legislation that could imperil the technical workings of the Internet, threaten the privacy and free speech rights of Internet users, and threaten technology innovation by upending the framework established by the DMCA. Behind the scenes, I pressed a key democratic proponent to hold off on introducing a House version of COICA while we still held control of Congress. By early 2011, however, Republicans were in charge.

  Starting early in 2011, in conversations with my colleagues, in hearings, and speeches I spoke out against the scheme embodied in COICA. Privately, I began contacting technology companies to urge them to get involved. Throughout March of 2011, I warned of a larger impending battle over online copyright. Despite these efforts, few people seemed to see the immediacy of the threat. Even fewer in Congress shared my point of view. Senator Ron Wyden (D-OR) and Congressman Jared Polis (D-CO) were some who did, and I met with them to discuss how to oppose the rumored new legislation.

  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.

  April brought another hearing on “online parasites.” In meetings with tech CEOs in Silicon Valley and tech leaders gathered in Washington, D.C., I continued to urge engagement in the coming battle over copyright enforcement. By the time I spoke in May to a brown bag lunch crowd at Mozilla in Mountain View, California, the Protecting IP Act (PIPA) had been introduced by Senator Leahy. Momentum was building.

  There seemed to be growing interest from Internet activists. I hope in part this was because of my efforts, but I believe it may also have resulted from the publicity created by the ICE raids on Internet web sites. Organizing
takes time and effort and sometimes, it can come too late. I continued to urge the need for action, making my case to tech companies as well as activists at conferences and events. In June, along with some tech executives, I made an effort to discuss alternatives to PIPA with some proponents, but despite sincere intentions by all, no real progress was made.

  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.

  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.

  In early November we sent a joint letter to our colleagues expressing the first bipartisan opposition to SOPA. However, we knew more than opposition was needed and so began discussions toward creating an alternative, ultimately the OPEN Act introduced by Senator Ron Wyden and Congressman Darrell Issa in December.