Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (4 page)

Now I’ve actually done a few online petitions before. I’ve worked at some of the biggest groups in the world that do online petitions. I’ve written a ton of them and I’ve seen even more. But I’ve never seen anything like this. Starting from literally nothing, we went to ten thousand signers, then a hundred thousand signers, then two hundred thousand, then three hundred thousand. And it wasn’t just signing a name—we asked those people to call into Congress, to call urgently. There was a vote coming up this week—in just a couple days. We had to stop it!

When I first joined Demand Progress, I offered to host Swartz and Segal at my house in Washington for a retreat to plot out six-month and one-year goals for the organization. Our mission and methods were still up for debate, but during the retreat we decided to kick forward a broad work plan and focus our energies on those efforts where our members expressed the most interest. We basically treated the effort like a startup.

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.

It was obvious that the pro-Internet forces were going to be massively outspent by industry proponents of COICA. We also knew that as a brand new group, Demand Progress would enter the debate with little-to-no credibility among status quo policymakers, that mainstream media coverage of our efforts would be almost non-existent, and that nobody thought we had any real chance to stop the legislative threat.

What was tremendously useful about that day was the meeting we had later: we navigated the bowels of the Capitol complex, dodging stacks of cardboard moving boxes piled full with the belongings of defeated and otherwise departing members, and dropped in on Matt Stoller. Matt had cut his chops as an early blogger and online activist and so cared deeply about bills that might compromise Internet freedom. We wanted to know what he thought we should do, whom we should talk to about lining up (virtual) bodies to stand with us. One critical tip: some guy named Patrick Ruffini. We also wanted to make sure that conservatives on the Hill were aware of the legislation, and so alerted Ron Paul’s office to it before we left the Capitol grounds that day.

Demand Progress was an activist group on the left, and advocated on the sorts of issues that would have placed us as diametric opposites on the political spectrum, especially during the Bush years.

It is not too difficult to imagine how various government agencies might want to use the state’s vast resources to control what ordinary citizens say and do online. It is in their interest to stand on the Internet’s metaphorical street corner and tell the American people, “Move along, nothing to see here.”

If we didn’t act, however, there was a danger that the bill would move so quickly, and opposition from the tech sector seem so esoteric, that these arguments could easily have been missed entirely. For their part, Hollywood had tried to portray COICA as no more controversial than renaming a post office. Looming large over the debate was a sense that content industry lobbyists had this sown up, and numerous times, tech industry sources warned that this could be passed, perhaps by voice vote, in the closing days of the 111th Congress.

And at the same time we told the press about it—and about this incredible online petition. And we met with the staff of members of Congress and pleaded with them to withdraw their support for this bill.

The Senate staffer 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 frontpage 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.

Section 105, called “Immunity For Taking Voluntary Action Against Sites That Endanger The Public Health,” made it a vehicle to prevent Americans’ access to safe, foreign online pharmacies where brand name drug prices are often 85% lower than at U.S. pharmacies. The provision defined safe non-U.S. online pharmacies as ones that endanger the public health and could be subject to government actions. This section was more pernicious than those dedicated to copyrighted materials because acquiring necessary medication is essential to one’s health and well-being, and sometimes is a matter of life or death. Not so for the shared MP3 download.

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 not show up, money will always win.

It was amazing, it was huge, the power of the Internet rose up in force against this bill. And then it passed the committee unanimously.

Two different versions of online censorship passed the Senate Judiciary Committee by unanimous 18-0 votes. Oregon Democrat Ron Wyden stood as the Senate’s lone opponent, and was twice able to place a “hold” on the bill, delaying further action. (As revealed in the Judiciary Committee’s vote count, Wyden was not even a member of the relevant committee tackling the issue.) In 2010, Wyden’s hold was accurately described as killing the COICA bill—which had emerged too late that year to pass. When Wyden did the same after the initial Judiciary Committee vote on PIPA in May 2011, the “hold” merely ensured delay. Senate Majority Leader Harry Reid would still be able to bring the legislation to the floor with a simple motion to proceed.

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.

In November, Sen. Ron Wyden had vowed to place a hold on the bill, but I knew that wouldn’t mean much. “Holds” and other Senate rules don’t matter to leaders when they really want to make the effort to pass the legislation in question. Here’s an example: throughout the first two years of Democratic Senate control in 2007–2008, Republican Tom “Dr. No” Coburn would routinely hold up virtually any spending bill on the grounds that the country’s deficit was too high. In almost every case, the holds got honored, even when the bills held widespread support. Harry Reid didn’t want to take the floor time to beat the filibuster. But in 2008, Democrat Chris Dodd placed a hold on legislation to immunize telecoms from their liability from participating in warrantless wiretapping. Despite Dodd’s longtime tenure, despite the typical practice of honoring holds, despite his own party’s control of the chamber, eventually the Senate took the time and broke Dodd’s filibuster and immunized the telecoms. This seemed like the same thing. If they really wanted SOPA and PIPA, they could break Wyden.

Now, as you may know, a single senator cannot actually stop a bill by themself. But they can delay it. By objecting to a bill, they can demand that Congress spend a bunch of time debating it before getting it passed. And Sen. Wyden
did—he bought us time. A lot of time, as it turned out—his delay held all the way through the end of that session of Congress, so that when the bill came back it had to start all over again. And since they were starting all over again, they decided they might as well give it a new name. And that’s when it began being called PIPA and eventually SOPA.

When SOPA was unveiled in October, the seventy-page draft was worse—far worse—than PIPA, offering a virtual Christmas list of new legal powers and technical remedies for copyright and trademark holders, none of which would have done much to stop infringement even as they rewrote basic rules of digital life.

In the name of combating rogue foreign websites, SOPA would have allowed law enforcement agencies and private parties to force U. S. ISPs to reroute user requests, force search engines to remove valid links, and require ad networks and payment processors to cut ties with condemned sites. Users who streamed a minimal amount of licensed content without permission, including through YouTube, would face felony charges. And most of the new powers made use of short-cut legal procedures that strained the limits of due process.

It made sense for SOPA supporters to sell the bill as one protecting the public health. In fact, SOPA lobbyists regularly invoked Section 105 to convince members of Congress to support the bill as a matter of protecting seniors who order medication online. It also gave members of Congress great political cover to support the bill, despite not really understanding it.

Approached from the outside, if the issue could be framed as an issue of government overreach, rank-and-file Republicans, many of them Tea Party freshmen, could be rallied to oppose the bills as a sort of default anti-government, anti-Obama Administration position. Shortly after the new Congress convened, we made a point of going to the annual Conservative Political Action Conference with flyers talking up the dangers of giving Barack Obama and Eric Holder’s Justice Department broad discretionary power to take down websites.

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.

Price controls in other countries mean that drug prices are much lower abroad. Before the Internet, the only way for Americans to take advantage of lower prescription drug prices in other countries was to travel, usually in the form of trips to Canada and Mexico. In fact, in the beginning of the last decade members of Congress would lead bus trips up to Canada to help their constituents afford needed medication. Now the Internet has created a marketplace in which Americans who struggle to afford prescription medication in the U.S. can access lower-priced foreign pharmacies. Since lower drug prices correlate with more Americans filling their prescriptions, the online marketplace in pharmaceuticals benefits the public health, but U.S. laws serve the economic interests of producers at the expense of consumers. That’s because federal law bans individuals from importing the same medicine sold in U. S. pharmacies from Canada and other countries where it’s much more affordable.

Only Silicon Valley Democrat Zoe Lofgren could be counted on as a firm ally in early 2011, raising questions that February about the Department of Homeland Security’s takedown program for domestic websites, and the fact that eighty-four thousand run-of-the-mill websites were shut off for three days as part of a misdirected order against a domain hosting company. The incident also made for an instructive horror story about the lack of due process involved: the government had only meant to target one site, but in the process, had plastered a notice on tens of thousands of sites effectively accusing their owners of child pornography.

The effort to pass the SOPA/PIPA legislation tracked prior road maps used by what my friend Senator Wyden lightheartedly dubbed “Big Content.” Their game plan was to create momentum by lining up both business and labor allies, and support from both Republicans and Democrats. The costs of infringement were emphasized and sometimes exaggerated while the costs of crippling technological innovation were ignored. There was an almost complete unwillingness to solicit savvy technological input. So it came as no surprise when the first hearing on “online parasites” in March included testimony from the motion picture studios endorsing the need for legislation. The issue was soon reinforced by domain seizures through U.S. Immigration and Customs Enforcement’s (ICE) “Operation In Our Sites” of websites accused of infringing copyrights. Some of these seizures, including the seizure of
Dajaz1.com
, appeared to violate the rights of the site owner and the free speech rights of users.