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

  everything leaks now and the sales are lower

  so we’re

  in the middle of nowhere

  but headed for a paradigm shift

  floating on a metaphor

  catch my drift

  with no stream

  everyone must subsist on protein

  if you blow steam

  listen don’t think

  that I think that my “cop that shit” don’t stink

  but the water level’s rising

  we’re trying to turn the tide

  so I hope that our ship don’t sink!

  everybody!

  leaks and torrents and sails oh my

  leaks and torrents and sails oh my

  leaks and torrents and sails oh my

  the cracks in the surface are hailstone-sized

  leaks and torrents and sails oh my

  leaks and torrents and sails oh my

  leaks and torrents and sails oh my

  and everything depends who the tale’s told by

  WHAT WAS LAMAR SMITH THINKING?

  DAVID SEGAL

  SOPA’s sponsor, Rep. Lamar Smith became a popular target for Internet artists, satirists and others looking for a villain in the fight. The art above was created by Chad Rocco and was a frequently circulated image among SOPA opponents.

  Introduced a few days before Halloween, it’s clear in hindsight that SOPA was a grab-bag full of unimaginably valuable treats for Internet activists—even if it at first looked like the Content Industry was absconding with all the candy. Protect IP was a very bad bill, but it was a bit too abstract to explain in a sound bite, and if, as Senator Wyden repeatedly asserted, COICA and PIPA were “bunker-busting cluster bombs,” that meant that SOPA was the Nuclear Option. The Internet Blacklist Bill framing had worked with our audience of grassroots activists, but it was difficult to take things to the next level and get the web platforms involved: Google, the music streaming service Grooveshark, and a few others had been tracking the legislation closely, but the likely impacts of PIPA were too nebulous to explain to tech start-ups with minimal or non-existent legal teams and which weren’t attuned to (or actively recoiled from) whatever icky thing was going on in D.C., no matter its public policy implications.

  SOPA would undermine all of the best parts of the Internet, forcing sites that relied on user-generated content to police that material before it ever even made it online. Foreign sites would have to prevent certain content from being uploaded or risk being blocked from American view. Domestic sites would have to scrub out any links to such blocked sites. And SOPA’s authors had targeted the domestic web, via COICA and PRO-IP before it, betraying their ultimate designs. All of that is what spurred millions of people into action and what convinced countless online platforms to mobilize their users.

  It’s impossible to know exactly what Lamar Smith was thinking, but if I may pull my stuffy old legislator’s garb out of the closet it’s been in for a couple of years and speculate: 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.

  This sort of negotiation is standard fare in legislative bodies: Lawmakers are constantly introducing legislation that they never intend to see pass. One might be trying to make a particular piece of legislation look more reasonable, or to neutralize another bad bill: it’s a strange metaphysics that governs the workings of a legislative chamber and the decisions by its leaders about which bills to move forward.

  For instance, during most of my four years in the Rhode Island House of Reps, the Speaker of the House managed a detente between two wings of the coalition who backed him, governed by a farcical calculus housed somewhere inside of his cranium. There was an understanding that gay marriage and legislation to require a 24-hour waiting period before abortions were inextricably bound to one another: either both bills would move forward in tandem, or neither would proceed.

  There’s a broad base of conservative Democrats in deep-blue Rhode Island, so the waiting period would have vested, while gay marriage probably would’ve failed, and certainly would have been vetoed by our conservative Republican governor if it had managed to sneak through. (He’d even vetoed a bill I’d sponsored allowing one member of a domestic partnership to claim the other’s remains and oversee his or her funeral.) The equation spurred a framework of corollaries that were even more absurd yet: when civil unions or other domestic partnership legislation inched forward, the anti-choice activists expected a bill in return—something lesser than a full-fledged waiting period: perhaps a pre-abortion ultrasound mandate.

  I was usually happy to play the progressive activist and introduce bills that served a purpose even though they weren’t meant to pass: one year a variety of vicious anti-immigrant bills came far too close to passage, so the next year we put in a menu of pro-immigrant bills, altering the metaphysical balance and neutralizing the bad ones—doing nothing became the compromise. A friend introduced a pot legalization bill, in part to make pot decriminalization more palatable, which in turn made medical marijuana seem more reasonable—and the latter two subsequently passed.

  For all of his inanities, Glenn Beck was astute to have pinpointed the importance of what’s known on the right as the “Overton Window”—that portion of the political spectrum whose ideas are treated as part of the “legitimate” discourse—and the importance of having ideological vanguards to “move the middle” and broaden scope of the debate. I’m already lamenting the inevitable collapse in the spectrum of allowable discourse in Congress, now that the left and right poles—Dennis Kucinich and Ron Paul—are both departing. (I’m especially concerned about Kucinich’s departure, as the left fringe of the spectrum gets far less attention in “serious” circles than does the right.)

  But there’s a danger in the sort of negotiation Smith was undertaking: if you propose something that’s too far beyond the pale you risk making a mockery of yourself and undermining the whole project. That’s what Smith did, and the poor guy surely had no clue what was coming. If Smith had simply introduced his own version of PIPA word-for-word it almost certainly would have passed. Instead we have him to thank for a newly politicized Internet public that will fight to make sure that nothing half as bad as PIPA ever passes again.

  Once SOPA was introduced we could run to the highest hilltops in Farmville (are there hills in Farmville?) and cry out: “SOPA (or at least the line of reasoning that led to it) would shut all of this down! Would you people please start paying attention?”

  And that’s what we did.

  We shot out a Halloween-costumed write-up of SOPA to our members—“It’s Alive … It’s a grab-bag of Halloween goodies for a handful of big corporations—but for us it’s Frankenstein’s monster, cobbled together from halfborn bills, set to suffocate free speech and innovation and terrorize consumers and Internet users”—and steered in a quick hundred thousand or so emails to Congress, asking members not to sign on as co-sponsors. We’d been buoyed by the low number of cosponsors at introduction—far fewer than had supported PIPA, even though it was drawing from a legislative body with more than fourfold the members—and the fact that they were only Hollywood’s hardest shills; we wanted to freeze out other potential backers before they became wedded to it.

  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—described below, it’s when reddit and Tumblr formally joined the
cause—and Demand Progress provided some tech support for them. The effort steered many hundreds of thousands of new constituent contacts to Congress.

  Then Demand Progress worked with Senator Wyden’s office on a new tactic to help make contacting lawmakers more compelling, one that’s replicable beyond just this fight: Wyden had been threatening to filibuster PIPA since May, and his staff had been turning over what he’d actually do to eat up some floor time and turn the event into a spectacle (you don’t need to filibuster Jimmy Stewart-style under the current rules of the Senate, but you create more havoc and get more credit with your supporters if you do). We offered up a suggestion: no reading out of the phone book, no reciting Portland’s hippest recipes for freerange venison with ambercup, kale, and peppercorn sauce, or engaging with other traditional fodder for filibuster floor-time filling. Let us tell the Internet that you’ll read the names of people who send emails in opposition to SOPA/ PIPA, announcing them as proud protectors of Internet freedom—that’ll really get activists going make them feel like there’s an extra value in emailing their lawmakers. His office, ever willing to collaborate with activists and help test out new tactics, bit.

  I forced my CompSci Phd roommate to spend a Saturday and Sunday cobbling together a slapdash site to which we appended a call-to-arms video that we’d filmed with Wyden earlier that week. We emailed Demand Progress members to alert them to the senator’s offer, and the idea took off. And it was heartening to see some of the more established progressive online activist groups like MoveOn—which we’d been leaning on for months—use this as their first foray into the SOPA/PIPA battle.

  For better or worse, the bill died before Wyden had a chance to make good on his promise to read those names. I’d always envisioned him using the list to scold pro-PIPA senators by reading off the names of their states’ residents: Katherine of Essex Junction, Jimmy of Brattleboro, Arthur of Provo, Melanie of Park City—an hour of floor time and he could’ve read the names of two-thirds of Patrick Leahy and Orrin Hatch’s constituents. But I doubt that would’ve happened: For all of the talk of a Washington that’s embittered to unprecedented extremes, the Senate is so faux-collegial that watching C-SPAN 2 gives me toothaches.

  So 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.

  Well before the January 18, 2012 website blackouts, U.S. House Democratic leader Nancy Pelosi was already opposed to SOPA. Above you can see Pelosi’s response to a constituent about SOPA.

  But Lamar Smith was still pressing forward, insisting that he would mark up the bill before New Year’s and get it voted out of the Judiciary Committee, which he chairs.

  A PUNCH IN THE GUT

  PATRICK RUFFINI

  Throughout the summer, the bill’s drafters on the House Judiciary Committee made public statements indicating they had heard the tech community’s concerns, and that the House bill would work to resolve many of them. In the second half of October, it was clear that nothing of the sort had occurred. Rumors began to emerge that SOPA would be worse than anything we’d seen to date, with Demand Progress, Don’t Censor the Net, the EFF and Public Knowledge sounding early alarms. PIPA’s changes from COICA had been a mixed bag—it removed a dreadful “blacklist” provision to encourage domain registrars and Internet service providers to block an informally cobbled-together list of “rogue” sites, while adding in the right-to-sue and search engine liability. The authors of SOPA not only refused to walk back any of PIPA’s most egregious provisions, but doubled down with new provisions bludgeoning the Digital Millennium Copyright Act’s safe harbors for third parties like Twitter, YouTube, and Facebook.

  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.

  Looking back, while numerous players agreed that the December markup hearing in the House Judiciary Committee was the moment the legislative push effectively died, its introduction on October 26, 2011 definitively set in motion the chain of events that led to the Internet rising en masse in opposition.

  Pre-SOPA, there was a sense that PIPA, though highly problematic, was not enough of a threat to Silicon Valley as a whole to inspire the companies to move their users to action. A top House aide interviewed for this book noted the widespread belief held by Hill staff that PIPA was simply not in the same league as SOPA; though distasteful, the Senate bill was a bitter pill that many tech companies could swallow with the right amendments. At the time, the best-case scenario was an amended PIPA that might placate the content industry for a few years.

  Underlining this sense of inevitability, PIPA sailed through committee with minimal comment earlier in the year. The only company truly singled out by the Senate bill was Google, which would be held liable for pirate links in search results. Yet as the process moved on, it seemed as though the content industry had ratcheted up the pressure on Congress to deal with other avenues of content discovery, like social media. Thus, 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. The added legal burden on Internet companies would fall less on large companies—Google could afford to spend tens of millions of dollars annually on a “content ID” platform for YouTube—than it would on venture-backed startups who wouldn’t get funded in the first place because of the legal risks associated with user-generated content. It was this point that was driven home by Brad Burnham of Union Square Ventures: many venture firms, including his, would not invest in music or video startups because of the likelihood they would be eventually be sued into oblivion. SOPA would take the same chilling effect, and apply it to the rest of the venture-backed technology ecosystem.

  For entrepreneurs, engineers, VCs, and technology enthusiasts, the introduction of SOPA became a gut-punch moment that clarified the stakes for millions who identified with and made a living on the Internet. That’s when this became more than an issue, but a cause

  “We were very disheartened once the bill got introduced,” explained one source involved in the fight. “It took a lot of the wind out of our sails. We thought we had made a lot of progress. We thought we had convinced them policy-wise there was a better way to do this.”

  From there on out, there would be no talk of a deal and no compromise. Even the Capitol Hill veterans on the anti-SOPA/PIPA team understood that this was now guerrilla warfare. And Shore and Jochum’s team understood if there was an enemy common to all legislative proposals, it was time. Hundreds (if not thousands) of bills are introduced every year to great fanfare and little opposition, yet only a handful see the President’s desk. In the vast majority of cases, bills don’t die because they are voted down; they’re simply not gotten to and fade away. Getting to a floor vote on SOPA or PIPA would have been deadly, as floor outcomes are pre-ordained. From a legislator’s point of view, SOPA had to be seen as too contr
oversial to risk even voting on.

  “If you’re the proponent, if you’re pushing legislation, your job is to get it introduced and get off the floor as quickly as possible,” said Shore, describing a death-by-a-thousand-cuts victory strategy where the delay itself could be used to sow doubts about SOPA’s viability. “What I wanted to do was create a dead elephant carcass rotting in the sun with vultures and flies—and the longer that dead elephant carcass just sat in the sun, the more I knew we could kick the can and win.”

  Meanwhile, as November rolled around, it would be clear that SOPA would be no PIPA in terms of near-unanimous assent from both sides of the aisle.

  On October 1st, the Tea Party Patriots had made good on a long-standing commitment to speak out on our side of the issue. Numerous reporters had been calling me, looking for something to write about the populist, Tea Party opposition angle, and overnight, this development gave us exactly the boost we needed.

  Two weeks later, seemingly out of nowhere, Tea Partier (and presidential candidate) Michele Bachmann added fuel to the fire with a constituent letter opposing the Senate bill. “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.”

  An anonymous constituent of Rep. Michele Bachmann contacted Demand Progress through Facebook and provided a response he/she had received to an anti-PIPA email they sent using Demand Progress’ website. We quickly alerted the media about the development, and at this fairly early point in the battle, it was seen as evidence that the Tea Party was on our side. The news article above noted the strange bedfellows alliance between the Hacking Politics editors.

  Following the bill’s introduction, Smith had scheduled a quick hearing on the bill for November 16th, and it was clear it would be a show trial. Of the six witnesses invited, only one would come from a group not supportive of the bill, Google’s copyright counsel Katherine Oyama. By deliberately ignoring Internet engineers, public interest groups, and the startup community, and singling out the biggest commercial player, Smith hoped to portray the opposition as one driven entirely by Google. Numerous others who volunteered to testify were shut out.