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

  The whitepaper’s authors remained active as well. On several occasions they joined CDT, PK, or other advocates to meet in person with congressional staff and explain the technical arguments. They sent letters to Congress in October and December rebutting efforts by the legislation’s supporters to dismiss the white-paper’s conclusions. Importantly, they also spoke to Executive Branch officials. In particular, CDT arranged a high-level meeting in early December between the paper authors and key White House staff. That meeting included Howard Schmidt, the Cybersecurity Coordinator, and Victoria Espinel, the Intellectual Property Enforcement Coordinator—both of whom would go on in January to coauthor the critical blog post announcing the Obama Administration’s opposition to DNS filtering.

  SOPA and the Unraveling

  Despite the growing opposition through the summer and early fall, there was little indication that Congress was listening. In the Senate, PIPA had been approved without objection by the Judiciary Committee, had numerous bipartisan cosponsors, and looked like it would have the votes to pass. Then, in late October, the leaders of the House Judiciary Committee introduced SOPA. Rather than addressing the problems with PIPA, SOPA was far worse. It expanded the field of sites that could be targeted and not only kept PIPA’s problematic remedies, but added new ones that threatened a broad range of legal sites. Even though it moved in the wrong direction, SOPA had similarly ominous bipartisan support.

  In contrast to the earlier Senate committee process, however, the House Judiciary Committee included some lawmakers who opposed or were at least skeptical of the legislation. SOPA was too extreme, and the technical and other arguments against it too serious, for it to command unanimous support. The whitepaper and other warnings of cybersecurity and technical problems gave these opponents crucial ammunition for the fight.

  At the November 16th committee hearing on SOPA, a number of Members raised questions about the cybersecurity impact of the legislation. This included not only Rep. Lofgren, a leading critic of PIPA even before SOPA’s introduction, but also Members who said they were still undecided on SOPA. Rep. Lungren, the Chairman of the House subcommittee on cybersecurity, was particularly outspoken, asking panel members about DNSSEC and noting that serious concerns had been raised by expert engineers with no axe to grind in the fight over copyright policy. MPAA’s witness expressed the view that the cybersecurity issues were greatly overstated, but Lungren and at least a few other Members were clearly troubled by the absence at the hearing of any engineers or cybersecurity experts who could speak to the issue on a technical level.

  During the pivotal committee markup in mid-December, the analyses regarding cybersecurity—the whitepaper, the Sandia letter, the op-eds by Stewart Baker, a new EFF-organized letter signed by eighty-three Internet engineers—were cited repeatedly by Reps. Lofgren, Issa, Chaffetz, Polis, and the other SOPA skeptics as they criticized the bill. Rep. Chaffetz memorably chided his colleagues, “We’re going to do surgery on the Internet … without bringing in the doctors. To my colleagues I would say, if you don’t know what DNSSEC is, you don’t know what you’re doing” with this legislation.

  One of critics’ principal frustrations was the way the harms and risks of DNS-filtering were simply brushed aside by SOPA’s proponents. Opponents asked, at the very least, that the committee slow down and fully consider the consequences. While they were not successful in getting the committee to do a careful assessment of the potential negative consequences, the skeptics’ constant refrain of questions focused attention on what had been ignored—SOPA’s myriad problems, technical and otherwise—and exposed the flawed process that gave rise to the bill in the first place. What had been intended as a smooth markup of a bipartisan bill turned into a two-day slog of debate and amendments that never made it to a final vote.

  What followed the markup is the truly remarkable story of how various communities on the Internet woke up to the dangers on the path Congress was heading down. The markup was streamed online, and the spectacle of the debate—with SOPA’s supporters at times acknowledging little understanding of the cybersecurity or technical questions but insisting that the bill be passed anyway—gave rise to rallying cries like “Bring in the nerds” and “It is no longer ok to not know how the Internet works.” Bill supporters were mocked on social networks for their fumbling or dismissive reactions to the technical side of the debate. Popular dissatisfaction mounted, both with the legislation and the process by which it was being considered, and it spread like wildfire in the online communities fostered by popular social networking platforms. As Congress headed home for the winter holidays, grassroots activists had powerful new fodder and a huge receptive audience for organizing petitions and call-in campaigns.

  By early January, the criticism was hitting home in the Senate as well. PIPA’s lead sponsors, probably sensing growing concern among other Senate offices about whether the technical questions had received fair consideration, organized a private briefing for Senate staff on the cybersecurity issue specifically, with opportunities for both the legislation’s supporters and opponents to explain their side of the cybersecurity question.

  Then, on January 14th, the Obama Administration finally weighed in. In a response to two petitions against the bills that had received more than fifty thousand signatures, three key White House officials—Intellectual Property Enforcement Coordinator Victoria Espinel, U.S. Chief Technology Officer Aneesh Chopra, and Cybersecurity Coordinator Howard Schmidt—stressed that antipiracy measures must not come at the expense of free expression, legitimate use of the Internet, and cybersecurity. The response specifically and unambiguously rejected DNS filtering and confirmed that SOPA and PIPA, as drafted, posed a threat to cybersecurity:

  “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.”

  Around the same time, the bills’ lead authors, Chairpersons Leahy and Smith, both issued statements acknowledging that the DNS portions of their respective bills would need to be removed. But it was too little, too late. The technical problems were not the bills’ only problems, and the various communities of opponents were mobilized and well prepared to make that known. The debate over the technical arguments had also highlighted fundamental flaws in the process that produced PIPA and SOPA. The Internet-engaged public was not going to be satisfied by grudging and last-minute concessions; the bills were viewed as too flawed and too much the product of back-room deals and a process that had been rigged from the start.

  Much has been and will continue to be written about the public SOPA/ PIPA protests that followed, and deservedly so. The petitions, calls, and blackout that took place on January 18th in response to the bills were unprecedented in scale, and may indeed stand out as a watershed moment for Internet policy-making and the democratic process. But they were fueled by a growing body of powerful arguments regarding the nitty-gritty substance of the legislation, including impartial technical analysis that exposed glaring flaws. That analysis, and the role it played in the ultimate withdrawal of the bills, should not be overlooked.

  What we saw in SOPA and PIPA was an attempt to make Internet policy from a narrow perspective, with little if any input from the community of people who best understand and care about how the Internet actually works. One of the key reasons we were successful in defeating these bills was that the community spoke up anyway. Millions of Internet users all over the country—indeed, all over the world—demanded that their concerns be heard. Imagine how much better Internet policymaking could work in the future if the public—and the experts—are included in the discussion from the start.

/>   PEOPLE POWERED POLITICS

  ERNESTO FALCON

  Ernesto Falcon was the director of government affairs for Public Knowledge from 2010-2012 after having worked in telecommunications policy on Capitol Hill for six years. His work involved informing Members of Congress and Congressional staff on Capitol Hill of the impact of policies involving copyright law and telecommunications law on the public interest. During his time at Public Knowledge, he was involved in successful efforts to protect the Federal Communications Commission Open Internet rules, to defeat the AT&T and T-Mobile merger, and to stop Congress from passing the PROTECT IP and Stop Online Piracy Act. He played an absolutely critical role in coordinating efforts to kill SOPA.

  On January 18th, 2012, the largest Internet protest in American history took place, with more than one hundred fifteen thousand websites going dark as well as more than 14 million Americans contacting Congress through petitions, emails, and phone calls. Many of my friends on Capitol Hill told me afterwards that the level of vocal opposition back home matched the volume of healthcare reform, one of the most contentious debates in decades. While many thought this final act against the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) came together out of the blue, for me it was the culmination of more than a year of working with local and national grassroots groups, engineers, venture capitalists, entrepreneurs, human rights groups, and Washington D.C.-based public interest groups.

  For more than the fourteen months Congress considered these bills. During that time, I met with well over one hundred Congressional offices, ranging from skeptics to strong supporters of SOPA and PIPA. Also, equally as importantly, I worked with one of the most amazing coalitions ever assembled on a political issue. Throughout the year we worked together on countless coalition meetings and conference calls. My role was to provide as much insight as possible into the legislative process based on my engagement with Capitol Hill and propose strategy to reach out to grassroots communities. Members of Congress and their offices were crucial in mobilizing their constituencies and getting the word out about the details of the bills. And all of this was dependent on the public engaging with Congress.

  Now that the dust has settled and the bills are more or less dead, many of these groups today remain engaged with Congress in the aftermath of the SOPA and PIPA in hopes of charting a positive agenda for copyright law. To help facilitate that process, Public Knowledge launched the Internet Blueprint to propose ways that copyright law can be improved for innovation rather than continue on the path of scorched earth and punishment.

  At this point, the bottom line is that people should understand how and why Congress came so close to passing SOPA and PIPA, and that no matter how much campaign money major corporations contribute, an engaged public will always win.

  Internet Blackout Minus Four Months: Things Are Bleak

  On September 20, 2011, after a full year of fighting in the Senate against the Combating Online Infringements and Counterfeits Act (COICA) and its follow up bill, PIPA, I figured we were going to lose the fight on Capitol Hill unless a massive public outcry woke up Congress. At this point, more than one-third of the Senate cosponsored PIPA and responses to our concerns on free speech, overly broadband government authority over the Internet’s architecture, cybersecurity, and additional lawsuits killing innovative startups were virtually unheeded by most. They were only taken seriously by Sen. Ron Wyden (D-OR), Sen. Jerry Moran (R-KS), Rep. Zoe Lofgren (D-CA), and Rep. Jared Polis (D-CO). Needless to say, things were looking very grim.

  Campaign money plays a primary role in how the legislative process operates when the public is not engaged, and at this point, the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and their allies outspent the technology industry on the scale of about four to one—more than $100 million for PIPA alone. If you are a politician who needs to raise several million dollars every two-to-six years and powerful lobbying groups give you the impression that your support for a proposal is non-controversial, it is easy to see why money alone would make support easy to come by.

  It doesn’t help that the tech industry, despite being very well known to the public, is still fairly new and small in the Washington D.C. political scene, while the movie and music industry have lobbied successfully on copyright law for decades. So while we opposed the bills and conducted as much Capitol Hill outreach as possible, it had very little impact.

  But that all changed on Oct. 26, 2011, when House Judiciary Committee Chairman Lamar Smith (R-TX) and many of his colleagues from both parties introduced SOPA. Because the MPAA and RIAA were so confident (rightfully so) that they could get any bill they wanted out of Congress given the last twelve months or so, they decided to shoot for the moon. They advanced a bill that not only dealt with copyright, but with the basic workings of the Internet. Once it became clear to the public that some in Congress were looking to completely restructure the Internet, the fight completely changed—but only because an alert and engaged public started getting involved in a big way.

  The fight between gatekeepers (large movie studios and large record labels) and distribution (communications technology) dates back decades. Incumbents in the marketplace will always exist and old ways of distributing (and monetizing) information will always fight the new way. Open platforms on the Internet are simply just the fight that exists today.

  On June 30, 2010, the Immigration and Customs and Enforcement (ICE) agency started Operation In Our Sites, likely as the result of intense lobbying by the RIAA and MPAA to “do something” to fight piracy. The agency seized domain names (.com and .org addresses). The ICE initiative resulted in some serious negative consequences, such as thousands of websites being mistakenly accused of child pornography, and most importantly, Americans having their free speech violated by the government. Now, not every website ICE goes after is innocent, but currently the legal authority ICE uses does not lend itself to things like due process and protecting free speech. Nevertheless, the pro-SOPA lobby (who are also the people giving ICE the list of targets) sang the government’s praises.

  Simultaneously, the lobbyists for the content industry and a few related powerful interest groups were going to Congress and showing them how to pirate things on the Internet (yes I know, irony). Without having witnessed it personally, but having been told how it was demonstrated, a lobbyist would have your senator, your Congressman, or their staff sit down in front of a computer and have them type in piratebay.org (which is now piratebay.se to bypass ICE) or do a Google search and then wow them with how much pirated material is available on the Internet.

  After showing them that it is possible to pirate things on the Internet, the lobbyists then explained to them that Congress can stop this by passing a new law. They pointed to how ICE is already doing something similar and explained how it is slowing piracy (factually untrue). Keep in mind, the average age of a Member of Congress is 55 years old and they are not very technically adept. However, they are always eager to resolve issues that they are led to believe are within their power to resolve, which in this instance was to “fight foreign criminals from stealing American stuff.” The problem, of course, would be the mechanisms in how you would do it.

  Bad Things Happen When the Public Does Not Engage

  The sad truth is that very few Americans were telling Congress that they opposed COICA or PIPA because very few Americans actually knew what their Congress was up to—or, worse yet, very few believed they could stop Congress. As a result, the major studios and record labels had a field day with the Senate by repeating the process outlined above. Since none of the offices had their phones ringing off the hook or stacks of letters and emails from their voters back home voicing opposition to the bills, it seemed like an easy choice coupled with a healthy infusion of campaign money. Many policy decisions made on Capitol Hill are a calculation of the people versus the money, but when the people do n
ot show up, money will always win.

  With a near silent public, the entire legislative process was dominated by influence peddling and campaign contributions with honest and serious debate non-existent. For example, when PIPA was introduced on May 12, 2011, Public Knowledge reacted immediately with our concerns. Two weeks later, on May 25, Public Knowledge and other public interest organizations raised substantive concerns with the legislation in a letter to the Senate Judiciary Committee. The following day that Committee voted out the legislation unanimously, without debate. They decided a hearing to examine the impacts on free speech, cybersecurity, and innovation was unnecessary.

  The only reason the full Senate did not pass the bill shortly afterwards was because one courageous senator, Ron Wyden of Oregon, stood against the bill from the onset. He understood from the beginning that what was being proposed would fundamentally alter the Internet in a negative way and that it would be unacceptable to the public (once they found out about it, that is). If it was not for his “hold,” then it is likely that PIPA would already be law. Americans owe him, and most importantly his dedicated staff, a lot for their bravery in the face of fierce political pressure.