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

  SOPA and PIPA: The Next Fight to Save the Internet

  The first mass protests against the Stop Online Piracy Act and the Protect IP Act took place in November 2011, nearly a year after the FCC passed its Open Internet rules. This time things were a little different.

  By late 2006, when the Net Neutrality fight got going, Facebook was just opening up to everyone, Google had just purchased YouTube, and Twitter had just launched. The digital activists that made up the Netroots were few in number, despite the success they were having in framing the political agenda.

  By 2011, there were nearly a billion people on Facebook. Tens of millions were using Twitter. Everyday Internet users from around the world had grown accustomed to using the Web to organize protests. President Obama’s 2008 campaign had shown what online activism on a massive scale could look like. The growing numbers of people with Internet access—especially on mobile devices—meant more people could organize and share information.

  With SOPA and PIPA, digital activists once again had a clear enemy. The entertainment industry and its friends in Congress were attacking something fundamental to the Web: our culture of online sharing and communication. These bills would hurt Internet users and the online platforms they depend on. With the danger posed to platforms like Google, reddit, Tumblr, and Wikipedia it was only a matter of time before they—along with tens of thousands of startups and individual entrepreneurs—got directly involved in the fight.

  SOPA/PIPA was also the second coming of a truly nonpartisan movement for Internet freedom. As in the early days of the Net Neutrality fight, a varied coalition of groups and individuals formed to protect the open Internet. Progressives, libertarians, Tea Partiers, party-line Republicans, startup founders, mom-and-pop business owners, artists, academics, technologists, geeks, and newbies all rallied to the cause … it was as diverse an alliance as one could hope to find, especially in a country as politically polarized as ours.

  This confluence of factors—an airtight ethical case, the engagement of millions of everyday Internet users, corporate villains showering cash on Washington lobbyists—echoed previous save-the-Internet campaigns. In many ways, the fight to stop SOPA and PIPA was the heir to the Net Neutrality fight.

  1 Roger Crockett, “At SBC, It’s All About ‘Scale and Scope,’” Businessweek, Nov. 7, 2005, http://www.businessweek.com/stories/2005-11-06/online-extra-at-sbc-its-all-about-scale-and-scope

  2 The Supreme Court didn’t actually approve on its merits the FCC’s decision to change the regulatory treatment for broadband. The Court simply ruled that, as an “expert agency,” the FCC was entitled to make this decision. Justice Scalia wouldn’t even go that far, however, and in a withering dissent he argued that the FCC had made the wrong decision. He thought it was wrong for the FCC to treat broadband Internet access differently, noting that it provides exactly the same “physical pipe” for delivery of content that telephone lines provide for dial-up ISPs. http://www.law.cornell.edu/supct/html/04-277.ZD.html

  COICA/PIPA/SOPA ARE CENSORSHIP

  MIKE MASNICK

  Mike Masnick is the CEO and founder of Techdirt, a website that focuses on technology news and tech-related issues. Masnick is also the founder and CEO of the company Floor64 and a contributor at Businessweek’s Business Exchange. Techdirt has a consistent Technorati 100 rating and has received “Best of the Web” thought leader awards from Businessweek and Forbes. For many, Masnick and Techdirt blew the whistle on COICA—the predecessor to PIPA and SOPA. This entry is adapted from blog posts that he wrote in the fall of 2010.

  In the fall of 2010, two of the entertainment industry’s favorite senators, Patrick Leahy (who keeps proposing stronger copyright laws) and Orin Hatch (who once proposed automatically destroying the computers of anyone caught file sharing … before his own Senate office was found to be using unlicensed software, that is) proposed a new law that would give the Justice Department the power to shut down websites that are declared as being “dedicated to illegal file sharing.”

  Perhaps these senators should brush up on their history.

  Dare I ask if they realized that Hollywood (who was leaning on them for this law) was established originally as a “pirate” venture to get away from Thomas Edison and his patents? Things change over time. 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? The senators quoted an already well-refuted series of U.S. Chamber of Commerce reports on the supposed “harm” of intellectual property theft—which just shows how intellectually dishonest they were being: they were willing to base a censorship law on debunked data.

  Even worse, this proposed law was supposed to have covered sites worldwide, not just in the U. S. For a country that had just passed a libel tourism law to protect Americans from foreign judgments, it’s a bit ridiculous that we were now trying to reach beyond our borders to shut down sites that may be perfectly legal elsewhere. The way that the law, called the “Combating Online Infringement and Counterfeits Act,” 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.

  It’s difficult to consider this anything other than a blatant censorship law. I can’t see how it passed even a simple First Amendment sniff test. It’s really quite sickening to see U.S. senators propose a law that is nothing less than censorship, designed to favor some of their biggest donors in the entertainment industry, who refuse to update their own business models.

  There are many serious problems with the way COICA is written, but let’s highlight why it is a bill in service of censorship, and how it opens the door to wider censorship of speech online.

  First off, the bill would have allowed the Justice Department to take down an entire website, effectively creating a blacklist, akin to just about every Internet censoring regime operated by the likes of China or those Axis-of-Evil-style foreign states our politicians are prone to shaming and using as evidence of American civil libertarian exceptionalism. Now, it is true that there was sometimes to be a judicial process involved in website blocking under COICA: the original bill had two lists, one that involved the judicial review, and one that did not. The latter was a “watch list” of sites which law enforcement would encourage ISPs and registrars to block, meaning they would block them; you just don’t go out of your way to step on the Attorney General’s big toe.

  As COICA was being debated, federal law enforcement agencies were starting to use authorities they claim from 2008’s PRO-IP Act to block access to certain domain names and replace their homepages with this image. This provided a stark example of how a broader government-run Internet blacklist might function.

  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.

  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 cou
rse, 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.

  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.

  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. The court here noted the similarities to the Near case:

  “Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past … Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near vs. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a ‘malicious, scandalous, and defamatory newspaper, magazine, or other periodical.’

  “There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing … In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. … Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order … Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs …”

  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.

  The other argument that says COICA (and its successor bills) were not censorship is that the legislation claims that it was only directed at sites “dedicated to infringing activities” that have “no demonstrable, commercially significant purpose or use other than” infringement. However, what supporters of COICA hate to admit is that “dedicated to infringing activities” is very much in the eye of the beholder, and the same folks who supported COICA—such as the MPAA and the RIAA—have a very long and troubled history of declaring all sorts of new technologies as “dedicated to infringing activities.” The VCR, cable TV, the DVR, and the MP3 player were all lambasted as being dedicated to infringing activities with no demonstrable, commercially significant purpose, when each was introduced. In hindsight, supporters of COICA liked to ignore this, and insist they always knew that each of those technologies could have perfectly legitimate non-infringing uses. But that’s only because they were allowed to go forward after a series of legal fights. With COICA, no such chance would have been given. It’s easy to declare something as dedicated to infringing activities if your financial or political interests make you unwilling to see how it can be useful.

  PART 2

  THE SOPA/PIPA BATTLE BEGINS

  The fight to stop SOPA culminated in the Internet Blackout of January 18th, 2012. However, for Demand Progress and Don’t Censor the Net, the effort started nearly a year and a half earlier. Our work, in turn, was made possible by decades of activism by a number of organizations and myriad activists who’d been toiling to keep the Internet free and open. This string of essays tells the story of the effort to defeat SOPA and its predecessor and companion bills, beginning with Demand Progress’s entry into the fray in the fall of 2010.

  NOW I WORK FOR DEMAND PROCRESS

  DAVID SECAL

  Demand Progress Executive Director David Segal speaks at a recent panel on civil liberties.

  David Segal is the executive director of the Demand Progress. He was previously a city councilman in Providence, Rhode Island and a state representative representing Providence and East Providence. He ran for Congress in 2010. His writing on a variety of topics has appeared in a number of outlets, such as the New York Times and Boston Globe.

  The Senate staffer certainly 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 front-page 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, as we flitted between Senate offices, handing staffers stacks of signatures, hoping the recipients might be at least conscientious enough to toss them into recycling bins rather than trash cans.

  I’d called Leahy’s office to let them know that there was now officially a popular movement in opposition to COICA and to try to get a meeting with his staff. A member of the corps of lawyers who worked for Leahy’s powerful Judiciary Committee returned the call an hour later. Leahy was wrong on this issue—he’d been very supportive of Hollywood’s interests during his lengthy Senate tenure—but he had a record of support for online privacy rights, so we hoped that we’d be able to work with him.

  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 as we began our quest to save the Internet.

  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 standar
ds—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. Hence the “blacklist bill” framing.

  Leahy’s guy agreed to see us, and Aaron came down from Boston to join. I think we were all a bit surprised that we actually managed to have a genial, even if mostly unproductive, meeting. There was one concern they even seemed to take seriously: we suggested that at the very least the bill could be amended to make it clear that it wouldn’t apply to domestic sites, since the government would have ways of getting at “rogue” domestic operators that didn’t entail the obliteration of speech rights. (That change would eventually be made in a later draft, but was countervailed by enough new disconcerting language that we couldn’t claim a win.)

  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.

  What problem was this legislation solving, at the risk of disrupting the business models of myriad web-based firms and undermining Americans’ freedom to connect online? Deckers manufactures Uggs in China at bottom-of-the-barrel wages; COICA would help them hock their wares in the United States at a markup relative to manufacturers of generic uggs, reducing consumer surplus that could be saved or spent somewhere more useful. It would help the management of Deckers make more money and protect various other special interests. Meanwhile, Internet usership now approaches breather-of-air as an interest of general concern, the epitome of “un-special” interests. (Some of the considerations relative to the impact of COICA, PIPA, and SOPA on Americans’ access to pharmaceuticals are similar, and illuminated in more detail in an essay later in this book.) Yet a bipartisan group of senators was proudly promoting this legislation.