Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (3 page)

For me, it all started with a phone call.

It was way back in September 2010, when I got a phone call from my friend Peter.

“Aaron,” he said. “There’s an amazing bill you have to take a look at.”

“What is it?” I said.

“It’s called COICA. The Combatting Online Infringement and Counterfeiting Act.”

“Oh, Peter,” I said. “I don’t care about copyright law. Maybe you’re right, maybe Hollywood is right, but either way is it really such a big deal? I’m not going to waste my life fighting over a little issue like copyright. Health care. Financial reform. Those are the sorts of issues I work on. Not something obscure like copyright.”

I could hear Peter grumbling. “Look, I don’t have time to argue with you. But it doesn’t matter for right now. Because this isn’t a bill about copyright.”

“It’s not?”

“No, it’s a bill about freedom of speech.”

The way that the law … 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.

I knew that if the Supreme Court had one blind spot around the First Amendment, more than anything else—more than slander or libel; more than pornography; more, even, than child pornography—it was copyright. When it came to copyright it was like part of the justices’ brains shut off and they totally forgot about the First Amendment. You got the sense that, deep down, they didn’t even think the First Amendment applied when copyright was at issue.

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 course, 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.

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 standards—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.

It’s so easy to accidentally copy something. So easy, in fact, that we found the leading Republican supporter of COICA, Orrin Hatch, had illegally copied a bunch of code into his own Senate website.

In 2007, Comcast blocked file-sharing protocol BitTorrent for any use at all—even downloading the Bible. This forced the FCC to take action and sanction Comcast, which in turn led to Comcast suing the FCC and claiming the agency lacked the authority to regulate Internet access. Given the FCC’s prior deregulatory decisions upheld in the Brand X case, another federal court ultimately agreed with Comcast.

Then came candidate Obama and his promise that he’d “take a back seat to no one on Net Neutrality.” That stance, and FCC Chairman Julius Genachowski’s early promises, inspired the hope that Net Neutrality would finally be protected once and for all. But the comments from Obama and Genachowski also prompted the phone and cable companies to do what they do best: fight back with lobbyists and lawyers.

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?

Indeed, important media and political figures in the U.S. (such as Secretary of State Hillary Clinton) frequently bemoan the Internet’s “lack of a gatekeeper.” University of Chicago law professor and former Obama Administration “regulatory czar” Cass Sunstein has suggested that the federal government create an office to debunk “conspiracy” theories on the Internet. Former President Bill Clinton, that champion of honesty, has even suggested the creation of an entirely new cabinet department devoted to “fact checking” the Internet! These proposals are done in the name of preventing the spread of factual errors, misinformation, and “conspiracy theories.”

“Network Neutrality” forms the basis for the Internet’s historical openness. Sir Tim Berners-Lee could have adopted proprietary technologies to build his vision of a web of interconnected documents. Instead, he opted for openness when inventing the software that became the Web.

At the exact same time Senate Democrats voted down net neutrality repeal, many of them were scheming to bring so-called anti-piracy legislation to the floor. The two bills coming up at the same time represents a common, devious tactic: make a big show of solidarity with a community or interest group on one bill, while selling them out on the side. So if the interest groups complained, individual members could simply point to the other vote, and add, “This other thing isn’t that bad, trust us, we just showed you we’re on your side, right?”

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.

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.

In perhaps the ultimate abuse of intermediary liability, Viacom, in a lawsuit against Google, argued that YouTube was complicit in acts of infringement because it allowed its users to mark videos as “private.” Private videos couldn’t be checked by Viacom’s copyright-enforcement bots, and Viacom wanted the privacy flag banned. Under Viacom’s legal theory—supported by all the major studios, broadcasters, publishers, and record labels—online services should not allow users to share files privately, or, at the very least, must allow entertainment corporations access to all private files to make sure they aren’t copyrighted.

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 … 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.

This is like requiring everyone to open up their kids’ birthday parties to enforcers from Warner Music to ensure that no royalty-free performances of “Happy Birthday” are taking place. It’s like putting mandatory spy-eye webcams into every big-screen TV to ensure that it’s not being used to run a bootleg cinema. It’s like a law that says that each of the big six publishers should get a key to every office in the land to ensure that no one is photocopying their books on the sly. This is beyond dumb. It’s felony stupidity.

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.

If you wanted to censor the Internet, if you wanted to come up with a way the government could shut down access to particular websites—this bill might just be the only way to do it. If you said it was about pornography, it’d probably get overturned by the courts—just like that adult bookstore case. But by claiming it was about copyright, it might just sneak through. And that was terrifying, because copyright was absolutely everywhere. If you wanted to shut down WikiLeaks, it’d be a bit of a stretch to claim you were doing it because they were distributing child pornography. But it wouldn’t be hard at all to claim they were violating copyright.

When I first read the bill that October, the notion that a bill like this could see the light of day was jaw-dropping. On the one hand, elected officials celebrated the Internet, used it in their campaigns, and extolled its disruptive potential in visits to Silicon Valley. Yet, under the guise of anodyne anti-piracy measures, we were about to give the U.S. government the power to disrupt its core architecture by allowing the U.S. Department of Justice the power to blacklist websites and tinker with the DNS system in ways the vast majority of Internet engineers thought unworkable.

When movies were invented, Thomas Edison, who held key film-related patents, claimed the right to authorize the production of films, tightly controlling how many movies could be made each year and what subjects these movies could address. The filmmakers of the day hated this, and they flew west to California to escape the long arm of Edison’s legal enforcers in New Jersey. William Fox, Adolphe Zukor, and Carl Laemmle, of Fox Studios, Famous Players, and Universal, respectively, founded the great early studios because they believed that their right to expression trumped Edison’s proprietary rights.

The early strategy was no more and no less than: stall. Play for time. And hope that in the intervening time enough doubts could be raised that proponents could be persuaded to amend the bill. Not defeat it. But improve it.

“Look,” they said. “This bill is going to pass. It’s going to pass unanimously. As much as we try, this is not a train we will be able to stop. So we’re not going to support it—who could support it?—but in opposition, let’s at least try to make it better.” That was the strategy: lobby to make the bill better. They had lists of little changes that would make the bill less obnoxious, or less expensive for them, or whatever—but the fact remained, at the end of the day, it was going to censor the Internet. And there was nothing we could do to stop it. So I did what
you always do when you’re a little guy, facing a terrible future, with long odds and little hope of success: I started an online petition. I called my friends and we stayed up all night setting up a website for a new group, Demand Progress, with an online petition opposing this noxious bill. And I sent it to a few friends and posted it on some websites.

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.