Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (29 page)

Nonetheless, in that hour, the ground continued to shift towards the opponents. The hearing had dragged out, with proceedings bordering on the absurd. Members were growing restless. Some wondered why they were there. Was this
not supposed to be a slam dunk—supported by all the usual suspects? Why were they being put through this? This seemed like a circus, not a markup.

And as the hearing’s first day gaveled to a close, the committee was not much closer to a final vote to move the bill to the House floor—which almost certainly would have passed.

Officially, opponents had every reason to be pessimistic. “It’s become clear we’re going to lose and lose in the worst way possible,” Issa told the full committee. “We’re going to lose without deference to the facts.”

But interviews given by MPAA lobbyists after the blackout indicated that they knew they had lost the battle on that first day. In private conversations, the content industry knew it was in trouble—and the unexpectedly fierce opposition on the committee backed up by the rising storm of tweets and phone calls from outside the hearing room were beginning to tip the scales. On that first day, over one hundred fifty-seven thousand people had watched the live video stream at
KeeptheWebOpen.com
, where would-be citizen legislators were busy making proposed edits to SOPA.

Earlier in the week, I had worried that opposition to the bill might not materialize in the same numbers if a major platform like Tumblr didn’t engage as they had done in November. Moreover, there was a sense that even a massive outpouring of online energy wouldn’t do much good if it came after a key vote. This had been the pattern up to this point. Most of the phone calls on American Censorship Day came during and following the lopsided hearing, but not before. The online organizer in me knew that it would be easier to mobilize online attention during the big event, but the lobbyists kept pressing for activity before: tweets, op-eds, petition signatures, and briefings that would rattle committee members before the even set foot in the hearing room. Working to strike this balance would be a key task for the rest of the campaign, and it changed the organizers’ strategy. During the markup, online activity peaked concurrently with the hearing. The Internet provided moral support for Issa, Lofgren, Chaffetz, and Polis as they fought a guerrilla campaign inside the hearing room, but it would not have been enough to forestall a committee vote without procedural maneuverings of those members. The opposition would adapt its strategy for the endgame, scheduling the January 18th blackout ahead of a big vote, on its own timeline and not Congress’s.

On December 15, Slurp140, a Twitter analytics service, reported that there were eighty-four thousand seven hundred seventy-one SOPA-related tweets—a record for the fight up to that point—and with the exception of the online blowup against GoDaddy a week later, the most activity we would see until the days prior to the blackout.

At Don’t Censor the Net, our numbers were following a hockey stick-like growth trajectory. The day before the markup, we had launched a petition with Senator Rand Paul to rally conservatives and libertarians against SOPA and PIPA. Throughout the campaign, we were seeing several signups per minute, and we nearly doubled our existing base of support in a week. The conversion rate on our petition far exceeded what was normal for candidates and causes,
and we saw a doubling of signatures thanks to those who shared the petition to Facebook or Twitter. Where the opposition to SOPA prior to the markup felt like a brushfire with the potential to be snuffed out by the proponents’ vaster arsenal, after the markup it became a raging wildfire that wouldn’t be extinguished until the bill died.

The markup would resume for a second day on Friday, December 16th. Thirty-six hours earlier, a victory for SOPA seemed to be in the bag, and now there was a palpable sense of optimism that opponents could delay further action on the bill into 2012—an election year when Congress would get little done. Few of the fifty-five amendments had been voted on after the first full day of hearings, and Smith was running out of time before Congress adjourned, possibly for the rest of the year.

That morning, there was talk that Chaffetz’s DNSSEC objection, encapsulated by his “bring in the nerds” riff, had struck a chord in the committee. He went to Smith, asking for a hearing on the technical and security implications of the bill before voting the bill out of committee, and wasn’t shot down. A concession like this would have been unprecedented. Capitol Hill watchers couldn’t recall a time when a bill entered the markup phase, only to go back for further fact-finding hearings. It was an embarrassing concession by the proponents that they hadn’t done their homework, and a sign of the full retreat to come.

Things didn’t have a chance to play out like that. At 1:30 p.m., eleven hours and twenty-eight minutes into the proceedings, Smith took the microphone and announced that the committee would stand in recess, following word of a full House recess. This was to be the last time Congress formally considered SOPA or PIPA.

This was the moment I became convinced that we had won. The bills that get passed through Congress fit into one of two categories: highly partisan bills designed to score political points at the expense of the other party, or uncontroversial bills supported by those in both parties that legislators can use back home to tout their problem-solving bona-fides. The MPAA and RIAA had hoped to slip SOPA through under the latter, and their messaging around the bill had the whiff of “Nothing to see here, move along.” For decades, the entertainment lobby had used the glitz and glamour of Hollywood to seduce members on both sides of the aisle, even conservatives worried about sex and violence in movies and music. And they threw better parties (I had attended a few).

SOPA and PIPA were always controversial on the Internet, and the markup is when they became controversial in Congress and with the American people. Hollywood had strong relationships with members of Congress on the relevant committees, but these only went so far: members who hadn’t thought much about technology or IP issues would now be weighing in, and Hollywood hadn’t showered them with campaign contributions. These members would have no reason to do anything but default to the voice of the people back home.

The political case for passing SOPA had been utterly decimated by the way its proponents handled the process in the Judiciary Committee, starting with a propagandistic one-sided November hearing that singled out Google as the
bill’s sole opponent, and ignored the other “nerds” beating down Smith’s door to testify. Dismissal of the technical concerns—and of any real debate whatsoever—was cited by many in the technology industry as the catalyst for first getting involved and spurring their users to action.

Now, the bill was controversial, without a clear political rationale for passage. Indeed, the politics now swung strongly the other way: Americans had shown they cared about keeping the government’s hands off the Internet more than they did about “foreign theft.” After decades of ever-expanding copyright, it was assumed that aggressive intellectual property enforcement was a political winner on Capitol Hill. Now, with a rising Internet economy driven by remix culture and user-generated content, Congress could no longer be sure.

The first tweets after the adjournment could have come from a liberated World War II capital. SOPA was dead until 2012! An election year! When nothing would get done. Congressional obstruction would save the day for once. And the bill would die.

Minutes after adjourning, Issa tweeted:

I’m proud to have made my #stopSOPA stand w/ @RepZoeLofgren @JaredPolis @Jasoninthehouse in Judiciary these last two days. #sopa #OPEN

—@DarrellIssa, December 16, 2011, 2:04pm

Sensing that they gave up a bit too soon, Smith’s forces put out word that the markup would resume the next week once the House was back in session to deal with the payroll tax. But this wasn’t a sure thing: the Senate could—and eventually did—pass changes to the payroll tax bill that wouldn’t require the House to go back into session, thus definitively tabling any discussion of SOPA until 2012.

Reflecting on the markup, it’s instructive to take a step back and consider how insiders and outsiders experienced these events differently. Prior to the markup, the insiders who fought the fight were extremely pessimistic—at least at the Judiciary Committee level—and the Manager’s Amendment was seen as a huge setback, bringing SOPA in line with the milder PIPA. Lobbyists involved in the fight repeatedly voiced concern that SOPA gave Patrick Leahy and the Senate proponents an opportunity to frame PIPA as the reasonable, uncontroversial alternative.

Smith’s Manager’s Amendment moving SOPA in the direction of PIPA was an implicit embrace of this dynamic, and yet it turned out not to matter. The Internet was just as vehement in its campaign against SOPA (and later PIPA) as before. This holds important lessons for future legislative fights.

Smith’s changes might have seemed a game-changer for inside players on the Hill, but they were virtually ignored by the online community. Once SOPA had been branded as the bill that killed the Internet, nothing bearing its name could pass. Nor were the substantive changes enough to placate the technology community. SOPA and PIPA were still bad bills, and as detailed elsewhere in these pages, the “follow the money” approach in the OPEN Act was the only palatable solution to the “rogue website” issue for technology companies.

Smith was in effect asking the tech community to negotiate with itself, positing a series of bogus remedies, any of which would have fundamentally damaged the Internet ecosystem. Fortunately, tech companies didn’t take the bait, and only pressed harder for SOPA’s total defeat. Later on, when we worried if the Internet was too riled up on SOPA, and not PIPA, the community would pivot around the action in the Senate, scheduling the Internet blackout to coincide with planned floor action in the upper chamber.

When it comes to online reaction to controversial bills affecting the Internet, amendments don’t matter. Once a bill has been branded a certain way, changing that perception is very difficult. A better way would be to put out legislation in draft form, and allow the online community to shape the bill prior to its introduction. This is the crux of Darrell Issa’s Madison Project, where the public was invited to co-author the alternative to SOPA.

In hindsight, we can say that the markup marked the moment the tide turned. All along, the bills depended on a sense that they were sleepy and uncontroversial. The assumption that they could stay as such had always been a colossal error in judgment by the proponents, but the markup brought home this reality in stark terms. Once we got word that the markup had been postponed, we were very optimistic that we had dealt a serious blow, but we couldn’t yet fathom how big this issue would become in the course of the next month.

Andrew McDiarmid and David Sohn both work for the Center for Democracy and Technology, where McDiarmid is a senior policy analyst and Sohn is general counsel. The Center for Democracy and Technology is a nonprofit public policy organization and the leading Internet freedom organization working at the critical edge of policy innovation. When the Internet was in its infancy, CDT helped shape the first legislative choices and court decisions that allowed this technology of freedom to flourish. Today, it is committed to finding innovative, practical and balanced solutions to the tough policy challenges facing this rapidly evolving medium
.

Early in the formative stages of SOPA/PIPA CDT’s David Sohn was invited to testify before Congress about anti-piracy proposals. The photo above is from a March 14, 2011 hearing titled “Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites.”

The scene is familiar to many among the millions who mobilized to defeat SOPA: some Members of Congress proudly declaring technical ignorance and defiantly dismissing free speech and cybersecurity concerns over DNS-blocking, while a vocal few underscored these problems and insisted that Congress “bring in the nerds” to learn more.

This dynamic at SOPA’s December 2011 markup meeting of the House Judiciary Committee became a rallying point for opponents of the legislation. We saw articles declaring it “no longer ok” for Congress not to know how the Internet works, and proponents’ steadfast refusal to entertain the technical objections to the bill fueled the sentiment that experts, Internet communities, and the public at large had been shut out of the behind-the-scenes work that went into both SOPA and PIPA.

Now, it isn’t exactly realistic to expect politicians to write code or understand all the technical workings of networks and the DNS. Nobody is seriously suggesting that they should. These intricacies are worlds away from the many pressing issues on policymakers’ minds, and we hire them to be effective representatives of their constituents, not network engineers.

Nonetheless, when the issue on the table is undeniably technical—and fiddling with Internet addressing is nothing if not technical—it’s not unreasonable to expect at least engagement with the details. Lucky for us, despite skewed hearings and the unwillingness of PIPA and SOPA’s sponsors to budge on the technical concerns (at least until it was too late), a small group of opponents used the SOPA markup as a platform to ask the right questions and bring attention to issues too long ignored in the lead-up to what could have otherwise been easy passage out of committee.