Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (34 page)

Today, the Obama Administration said that any new IP enforcement legislation must be narrowly tailored to a compelling interest and must meet strict yet carefully designed specs. It also said that (1) countries can balkanize the Internet along the lines of commerce, but it must leave the global, non-commercial speech, creativity and innovation of the Internet alone, and (2) governments should not regulate online content businesses through the network and code layers of the Internet, or through non-commercial content layer activities. The Administration laid down these principles to protect job creation, innovation, creativity and free expression.

The White House showed immense courage today, and now we’ll see if it has real leadership. After all, the White House’s statement today on piracy and an open Internet can only be measured in historical perspective, based on the impact it ends up actually having.

How might we measure this impact?

One way is through comparison, and in this case the right baseline is former FCC Chairman Michael Powell’s Internet Policy Principles, which became the foundation for those who support the end goal of network neutrality (even though this large group disagreed on whether to accomplish this through law, market competition, norms, and/or code). Five years down the road, will the White House’s statement have had as much influence? Will it have been repeated as many times by other policymakers, third parties, media, and the public? Will Victoria Espinel become a champion for the Internet? Will it have been the foundation for both policy and norms, nudging the market gently in the right direction without being overly prescriptive or demur?

Another way to measure is more direct: what actual policies are (or are not) implemented? This measurement is more difficult than it sounds, because the White House included many lawyer weasel words throughout—they’re against censorship, but they hedge a little bit on search engines (despite the fact that data shows this is both an ineffective and bad vehicle for regulation:
http://www.techdirt.com/articles/20111130/05022316931/data-shows-removing-rogue-sites-search-wont-make-much-difference.shtml
), and they’re only against “overly broad” private rights of action.

That said, the Administration laid down what appears to be a pretty clean Line of Demarcation: “new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity.”

Let’s break this all the way down:

To play it back, “new legislation (A) must be (B) narrowly targeted (C) only at sites (C1) beyond the reach of current U.S. law, (C2) cover activity clearly prohibited under existing U.S. laws, and (C3) be effectively tailored, with (C4) strong due process and (C5) focused on criminal activity.”

If you compare this standard to other attempts at governments setting Internet policy principles—for instance, the OECD’s recent statement—then the U.S. Administration was quite a bit clearer. In relative terms, it’s a straight talk express.

They also went substantively further by demarcating a line in the sand across which Internet regulation shall not pass.

If I read it correctly, the Administration is saying IP enforcement could go as far as the OPEN Act, but no further. Abstracted up a layer, the Administration is saying that in some cases, it may be ok to balkanize the Internet when it
comes to commercial transactions. The U.S. can make decisions about how foreign businesses and Americans exchange money with one another—in other words, the guts of trade policy. But the U.S. must not take actions to prevent an American from engaging and encountering Chinese speech, creativity, and innovation—just as we would say China should not prevent its citizens from engaging and encountering Americans online.

That isn’t just an Internet Policy Principle. That’s a Global Internet Policy Line of Commercial/NonCommercial Demarcation.

The roots of the Internet are non-commercial. It came from academia. The Web was built on open standards and open code. It has given rise to open content.

All of this non-commercial activity provides the infrastructure for a huge commercial ecosystem. All the jobs and economic growth generated by the Internet industry are built on top of this non-commercial infrastructure. This is a hybrid economy.

The Administration said today that this infrastructure must remain open and innovative, and governments should never seek to regulate online content layer businesses through messing with underlying infrastructure, whether non-commercial content layer activities, or the code and network layers of the Internet.

SOPA and PIPA became key concerns of many of the activists across the country who’d gathered under the Occupy Wall Street banner. Many protestors had already been confronted by attempts by corporations and governments to prevent their peaceable assembly in the public square. It was easy to analogize the ramifications SOPA and PIPA would have for the web. Note the 99% OWS messaging in the SOPA protest sign above.

The accumulation of power is a tyrant’s wont, and the defense of liberty is a citizen’s sacred duty. It is inside the dialectic of these forces where the arc of human drama unfolds. Our story is long, and our progress has been great in our march towards a freer world. Yet much of our motion has been in retrograde—each epoch of our history eventually regresses into a gradual ceding of much that’s been accomplished. Humanity is either profoundly patient, profoundly lazy, or both. We tolerate much, and revolt very little. Yet, from time to time, the abuses of a government against its people become impossible to bear. From time to time, we reverse course, and once again make great strides in our quest for true justice. When the arrogance of the powerful reaches a critical point, the apathy and lethargy and complacency with which the people are programmed can vanish quickly. We are here to sound a warning to those within the barricades of wealth and power: reverse course, or wake the sleeping giant of the true body politic.

The erosion of our essential liberties has been slow, and at times subtle, but it has also been constant and insidious. Nearly complete disenfranchisement of the general populace has been achieved via social, political, economic and environmental means. We gather here in defense of our treasured rights. We know that these rights are natural and god given, and we will not allow them to be subject to the will and whim of a shadow government or kleptocratic cadre. We will defend them to our death rather than live under the yoke of plutocratic despotism. Yet, we still believe that reparation can be achieved through means political and civil.

Though the string of trespasses which we protest is long, we wish to voice our grievances with the ruling regime in no uncertain terms. In the name of the American people, we beseech those who supposedly serve our interests to oppose the passage of HR.326 and S.968. Should these bills become law, our nation will transgress a line of moral sanity from beyond which it will be difficult to return. In the hope that we might still preserve and restore our republic, we implore our representatives to oppose these key pieces of legislation.

HR.3261 is the Stop Online Piracy Act, and S.968 is the Protect IP Act. The provisions of those bills would make it possible for the judiciary to censor content on the Internet with exceedingly low burdens of proof, and extremely high risk of collateral damage. It is the consensus of leading technology and civil liberties groups that the authors of these bills had little regard for the technical reality of our telecommunications systems or the rights of the populous to freely express itself. Multinational corporations have used the U. S. Chamber
of Commerce and Motion Picture Association of America to lobby heavily for these pieces of legislation—exerting their corrupting influence in the halls of power, so that our duly sworn servants might act against the interests of their constituencies. While a desire to stop the piracy of intellectual property may be justifiable, it is clear to the leading technologists of our day that the legislation in question would not do so. We will not once again allow ourselves to be fooled by the doublespeak of lobbyists and their puppet politicians. We will no longer look the other way.

Over the course of the last decade, much damage has been done to the moral fabric of our democracy. Longstanding principles have been breached. Those in power have shown their colors as self-appointed lords who think it justified to capture, detain, torture, and execute individuals anywhere on the planet. We have become a nation that spies upon its own citizenry, without need for warrant or subpoena. Dissent is quashed, vast swaths of the population are incarcerated and systematically undereducated, laws are bought and paid for. We seem to have forgotten, as a nation and as a people, that the only justified derivation of sovereignty is the voluntary association of free individuals. Recent events around the world strengthen our belief that a government sustained by the practice of coercion will not last. We are hopeful that we can repair this damage through means that are political and peaceful. A great deal of this hope lies in our newfound ability to communicate globally by means of digital transmission. We caution the so-called servants of the public that the ongoing and aforementioned attempts to legalize censorship of the Internet would spell moral ruin for our government, and disaster for our nation.

To the soul of any faithful citizen, the first part of this new millennium has been painful. We have watched as our nation’s legislators have proven themselves to be myopic and guided by corrupt influence. By all accounts, they no longer fulfill the role envisioned for them in our Constitution. They do not represent the interests of the many. The essential checks and balances required of the executive and judicial branches have similarly failed, as the power of such great wealth concentrated in so few pervades all levels of government in their interlocking dependencies. It is natural to be humbled by failure. That humility propels evolution towards success. Though we see no evidence of it, we hope that those in power will be humbled by their failure, will awaken to their mandate, and will turn to the many for guidance.

We are still, in the words of Lazarus, the huddled masses yearning to breathe free—yet in this age of information, our yearning has taken a new shape. We yearn to share, to exchange ideas—to realize our common humanity, and in so doing transcend the ultimately destructive impulse of nationalism and narrow self-interest. Therefore, we will protect with all our might our right to have unfettered access to free speech via the Internet. At this critical hour in our history, we consider that right to be, in essence, concomitant with those still inalienable rights acknowledged in the Declaration of Independence—to life, liberty and the pursuit of happiness.

It is not too late to save the soul of our state. It is not too late to turn back from the route of corruption and tyranny, but it must begin now, and it
must begin by recognizing the critical importance of our ability to associate and exchange ideas in cyberspace. Any attempt to abridge our ability to do so will be viewed as an attack on our natural rights, and an egregious misstep. SOPA and Protect IP are horrendously crafted and dangerous pieces of legislation that will not achieve the ends purported by their corporate backers, but will endanger liberties most prized. They must not become law.