Authors: and David Moon Patrick Ruffini David Segal
Tags: #Bisac Code 1: POL035000
Operation In Our Sites … is the first coordinated effort by the U.S. government to go after Web sites that are engaged in substantial amounts of criminally infringing activity. In the United States our legal system incorporates fundamental principles of due process and free speech, and those policy principles are
extremely important to this administration. So Operation In Our Sites, and the manner in which it’s being carried out, has safeguards to protect to those policy principles. And I think that having increased law enforcement that is consistent with those values is what the United States should be doing, and I think that can and will be a good example to other countries as they are assessing how to fight online infringement.
No warning was made to site operators in advance of the seizure. Beyond the IPR Center press release, the government offered very little public comment on the seizures. The application and affidavit for a seizure warrant and the seizure warrant itself, with the specific charges levied against the sites, were not released for several more weeks. Notably, the five music-related sites were the first with domains seized by ICE that were more than just link and ad dumps. This was especially true of Dajaz1, Rap Godfathers, and On Smash, all of which were prominent and vital parts of the online rap community. Serving as a sort of amalgamation of radio station, MTV, fanzine, label liaison, PR, record shop, and local bar frequented by rap fans, each site hosted video and song premieres, broke news related to both niche and popular acts, and provided open message boards and chat rooms for fans and artists.
In essence, SOPA changed the debate from the original argument for PIPA (targeting foreign websites) to targeting everything Americans use and cherish today on the Internet. SOPA targeted user generated websites and open platforms in a way that would have destroyed the ecosystem of YouTube, Twitter, Facebook, and Tumblr. When I first saw the bill, I was floored that some in Congress would go so far as to engage in a scorched earth policy to fight piracy (and ultimately do very little to curb it).
Richard O’Dwyer, a 24-year-old from Chesterfield, England, founded
in December 2007 while studying for a degree in computer science at Sheffield Hallam University. The site, which O’Dwyer started as a hobby, was essentially a boutique, entertainment-oriented search engine, which provided users with links to streaming movies, TV shows, documentaries, anime, and music.
hosted no content on its servers, it merely pointed users in the direction of third party sites that did.
Without warning, on June 30, 2010, the
domain was seized by U.S. Immigration and Customs Enforcement [ICE] and a boilerplate copyright notice was posted on the site. Richard continued to run TVShack. cc unimpeded, until one day when he got a rather unexpected knock at the door. The very long arm of the law, in the form of two American ICE officers, had come a-calling at his university accommodation in the north of England, accompanied by an escort of Her Majesty’s boys in blue. Richard was arrested.
Richard, and his mother Julia, a National Health Service nurse, are currently in the process of appealing this autocratic extradition ruling.
Essentially while I would explain to an office that DNS filtering is used by countries like China and Iran and that, according to the experts, filtering makes the network vulnerable to cybersecurity attacks, the SOPA lobby would tell Congress that DNS filtering happens all the time for child pornography and malware and that experts have shown it is ok. But that’s technically untrue—Comcast, for example, does not filter anything because that would make its network unsecure.
Unlike the skin-deep remedy of DNS blocking (where the content would remain online, just not at a domain name), follow the money had already shown its effectiveness in cutting off online offshore gambling. Credit card companies, including Visa and MasterCard, already had well-established policies against supporting merchants who dealt in pirated or counterfeit goods, making censorship concerns a non-issue. Studies released during the debate showed that 95% of the trade in spam or online counterfeit goods flowed through just three offshore banks. This approach addressed these choke-points. Ironically, though the DNS blocking provisions in SOPA and PIPA represented a drastic departure for how the Internet was architected and policed, its net impact on rogue website activity would have been minimal.
Despite the statutory barriers to personal drug importation, the FDA has never prosecuted an individual for personally importing prescription medication for his or her own use. It is reasonable to view the practice as, de facto, decriminalized.
We anticipated little outcry from beyond the usual cadre of activists when Senator Amy Klobuchar sponsored S.978, an effort to subject online streaming to harsh criminal penalties. (It was later rolled into SOPA.) We first heard about the draconian prospective law through Mike Masnick’s Techdirt blog. In a June 1, 2011 article he alerted readers to the ramifications of Klobuchar’s proposal: “If you embed a YouTube video that turns out to be infringing, and more than ten people view it because of your link … you could be facing five years in jail.”
Since the bill had not been introduced with a formal name, we dubbed S.978 “Ten Strikes” and blasted a call to action to our email list.
The other thing was they didn’t know what bail conditions to impose on [Richard]. The judge was like, “We’ve got the money, we’ve got the passport, what else can we do to him?” The barrister said we could say that he mustn’t
access the Internet, but then the judge was saying he’s got exams the next week, he’s at university, so we can’t do that, can we? And how could we police that anyway, he could just go in an Internet café. So Richard had to tap on the glass, because he was behind this glass wall in the court, to get somebody to come over so that he could make suggestions to them about his bail. He just said, “You could tell me not to access the TVShack website”—which he’d already taken down anyway—and “You could tell me not to buy any new domain names.” So he chose his own bail restrictions because they didn’t know what to do. It was funny. Well it would have been funny if it hadn’t been so frightening.
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.
I was at an event and I got introduced to a U.S. senator—one of the strong proponents of the original COICA bill. And I asked him why, despite being such a progressive, despite giving a speech in favor of civil liberties, he was supporting a bill that would censor the Internet. And the typical politician’s smile faded from his face and his eyes started burning a fiery red. And he started shouting. Something like, “Those people on the Internet!” He yelled, “They think they can get away with anything! They think they can just put anything up and there’s nothing we can do to stop them! They put up everything! They put up the plans to our fighter jets and they just laugh at us! Well, we’re going to show them. There’s got to be laws on the Internet—it’s got to be under control.”
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.
By the fall of 2011, “Big Content’s” forces were advancing on all fronts, culminating in SOPA’s introduction by Congressman Lamar Smith (R-TX), Chairman of the House Judiciary Committee. I had warned my colleagues in private discussions that SOPA was one-sided and lacked any meaningful input from the tech community, and I pressed for a delay so it could be better balanced. Democrats no longer controlled the House and these requests were unavailing. With legislation in both the House and Senate, the situation appeared favorable for steam rolling the bills through Congress. Because proponents “had the votes” there seemed little interest in negotiating to fix problems.
[Lamar] 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 …
The timing also struck me. Congress, which typically did almost nothing in November and December without a good reason, had planned hearings and markups and votes for SOPA and PIPA during this period. From the beginning, the key sponsors sought passage at the end of 2011, when public attention focused anywhere but Washington. They obviously wanted it to slip through unnoticed.
Under the pretext of protecting the rights of artists, the corrupt and very powerful copyright industry spent a record $92 million on a push for the House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect-IP Act (PIPA). These laws—laws that could censor or even shut down any website without due process—faced minimal public resistance despite their stifling impact on entrepreneurial, intellectual, creative, religious, and political expression. With overwhelming bipartisan support, their passage was seen as inevitable.
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.
It seemed obvious that the libertarian-right should be opposed to this legislation: after all, it was a robust new regulatory regime being foisted upon Americans by one of conservatives’ very favorite boogeymen: Hollywood.
Because passage in the Judiciary Committee seemed assured, the anti-SOPA lobbyists had to hustle and get creative, going places where Hollywood’s underworked lobbyists wouldn’t. They talked to freshman members on the Government Oversight committee, who might be looking to do a favor for their chairman, Darrell Issa. More generally, they viewed any backbencher without a previous history with Hollywood as a potential get.
Mark [Mark Meckler—co-coordinator of the Tea Party Patriots] is conservative, but the kind of guy who’s willing to go on fringe left-wing TV or radio and have a real dialogue with the “enemy.” During one session in which neither of us was a participant I cornered him and convinced him to join me in the Green Room, where we co-authored this snippet of propaganda: “Have your own Web site?” the group wrote, “Maybe the government will shut it down tomorrow … without any notice to you. Republicans are going to introduce this (bill) in the House, Democrats in the Senate. What? Big labor, Hollywood, U.S. Chamber of Commerce all in this together … against you.” We linked it back to an article that Patrick Ruffini, Charlie Turner, and I had written for the Portland Oregonian in support of Wyden’s hold, and sent it to eight hundred thousand members of the Tea Party—via Facebook. And then I looked over Mark’s shoulder as he reloaded the page about one hundred times—in a fit of juvenile delight that’s all-too-familiar to me as somebody who also works with a large online activist list—as he watched hundreds of people “like” the post.
There is a saying that politics makes strange bedfellows. I don’t agree with Congressmen Darrell Issa (R-CA) and Jason Chaffetz (R-UT) on many things but we could agree on SOPA/PIPA. I was happy to join forces with these fellow members of the House Judiciary Committee to make an effort to derail the oncoming freight train that SOPA had become. We were joined by Congressman Polis who would soon be appointed to the Judiciary Committee.
During the months of PIPA, I met with countless Congressional staffers who were concerned about the national security implications of DNS filtering and the First Amendment concerns raised by the free speech community. However, given the fact that the politics looked extraordinarily one-sided, many staffers
and their bosses fell into one of two spaces: a) If so many other offices cosponsored the bill, then maybe our concerns were unwarranted, and b) why should they stick their neck out against a bill that seemed all but certain to pass?