Two years ago Hollywood, no kidding, masterminded a plot to, in effect, steal the Internet (by criminalizing certain conduct, booby trapping the Web in ways that few non-mega-corporations could cope with). There are signs, as perceptively flagged by the Electronic Frontier Foundation, that the perps are back at it. We should care.
This two-part column reveals an untold part of the story about how the bad guys were stopped last time. And, if not stopped again, how it could lead to a fundamental loss of civil rights and freedom on the Internet.
The perversely named “Stop Online Piracy Act” (SOPA) itself may have been the most brazen attempted act of piracy in all recorded history. Truth in Legislation would have required it to be named the “Ultimate Act of Online Piracy.” Enactment effectively would have pirated the World Wide Web from a common space and converted it into the private preserve of the Big Entertainment Lobby.
The Plot to steal the Internet was foiled. It was foiled by an “Irresistible Force” — public opinion, rallied by a twenty-something Freedom Fighter, Aaron Swartz, now dead. This combined with an Immovable Object, the consciences of a tiny group of legislators. Together they — barely — defeated one of the meanest pieces of legislation in our lifetimes.
The “outside” story — of the late-rallying popular opposition — has been fairly extensively reported. 7,000 (some claimover 100,000) websites, including Wikipedia and other high traffic sites, were persuaded to close shop for a day. Google draped its logo in black. In the view of Harvard Law School professor, author, public intellectual, and co-creator of the Creative Commons Lawrence Lessig, “SOPA was stopped by the most important Internet campaign so far — lead by my (now dead) friend Aaron Swartz, and thousands of others.”
As the New York Times reported “’I think [stopping SOPA] is an important moment in the Capitol,’ said Representative Zoe Lofgren, Democrat of California and an important opponent of the legislation. ‘Too often, legislation is about competing business interests. This is way beyond that. This is individual citizens rising up.’”
But the “inside” story — four liberty-minded lawmakers who stood up in front of SOPA like the protestor in Tiananmen Square against the column of tanks — has remained, mostly, obscure. This tells that story.
But first. Why should you care? Undaunted by its 2011 failure Hollywood and the Big Record Labels are staging the sequel. This time, the bad guys could win. The Huffington Post recently spotted the perps busy inside the federal (perhaps, more aptly, feral) bureaucracy hollowing out the Constitution: “The [Commerce] department’s Internet Policy Task Force last week proposed making it a felony to stream copyrighted works.”
Give the Internet to Big Business? Hollywood and the Recording Industry appear to have found a compliant handmaiden, Penny Pritzker, the new U.S. Commerce Secretary, to work the inside while they work the outside. Pritzker’s Commerce Department employs, among other things, the risible euphemism of “improving the operation of the notice and takedown system” of the Digital Millennium Copyright Act. That’s a system which is working rather beautifully for all concerned, content providers and distributors both. Something’s extremely fishy here.
Secretary Pritzker, a billionaire heiress, recently was bragging about cavorting with the head of the Recording Industry Association of America. It’s not hard to imagine whose side — the rich and famous … or mere citizens like us? — she’s on.
Practical upshot? Among much other potential damage, if Big Hollywood colluding with Big Government succeeds, it changes the very nature of the Web. Quite possibly, for example, “SOPA 2.0? could mean the end of the Drudge Report. Drudge hardly can maintain his Report if an innocent miscall on copyright makes him subject to prosecution, by any United States attorney, for a federal felony.
Would the silencing of Drudge be an unintended consequence? Or might it be intentional? Chairman Darrell Issa has written to Attorney General Holder: “The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department’s handling of the case.”
(Matt? Meet Penny. The new “Big Sis” candidate?)
The hero in challenging Big Hollywood’s Big Piracy Gambit in the U.S. Senate was Ron Wyden. The main heroes in the House, reportedly, were Reps. Darrell Issa (R-CA), Jason Chaffetz (R-UT), and Jared Polis (D-CO).
As hacktivist Aaron Swartz stated in his keynote speech delivered at F2C: Freedom to Connect 2012, Washington DC, “How we stopped SOPA,” six months before Swartz/s untimely, tragic, death:
“Senator Ron Wyden, the Democrat from Oregon, put a hold on the Bill, giving a speech in which he called in a nuclear bunker buster bomb aimed at the Internet. He announced he would not allow it to pass without changes. As you may know, a single Senator can’t actually stop a bill by themselves. But they can delay it. … He bought us time. A lot of time as it turned out. His delay held all the way to the end of that session of Congress. … There was probably a year or two of delay there. And in retrospect we used that time to lay the groundwork for what came later.”
The reintroduction of this legislation came (in the Senate) as PIPA, and (in the House) as SOPA. “The introduction of the Stop Online Piracy Act and its Senate counterpart was the apotheosis of how Congress should not work,” recalls Seamus Kraft, then an Issa staff member and deeply engaged in the process. Kraft:
“Imagine the (metaphorically) smoke-filled room, special-interest authored legislation, launched without warning, without seeking input from stakeholders beyond a mere ‘sop for Cerberus’ — or, to Cyberspace: a single hearing on this bill, with five or six bigwigs from the content industry to catch softballs. And one lower level representative from Google … to be bullied.”
“The proposed legislation was seeking to combat intellectual property theft via the internet. The content creators wished to stop downloading of copyrighted content — especially music and movies. That’s a legitimate goal. But the mechanisms proposed for doing it were horrendous, a ‘kill them all, let God sort out the souls of the innocent’ strategy.”
“This naivete left Congress vulnerable to special interests pushing a one-sided solution to an ill-defined problem. The relevant committee proceeded without seeking the input of representatives of those who use, or whose business is, the Internet. The most important locked-out constituency was users: you and me.”
“It’s pretty much assured that VP Joe Biden is in favor of PROTECT IP/E-PARASITE/SOPA. Since the start of this administration, President Obama has delegated most copyright issues to Biden, and Biden’s general view on copyright seems to be ‘whatever makes Hollywood happier must be fantastic.’ How else do you describe his continued support of ever more draconian copyright law, contrary to the evidence suggesting that it only makes things worse? How else do you explain his claim that he got ‘all the stakeholders’ concerning copyright into a summit meeting, when it only involved government officials and the big labels and studios (no consumer advocates, no artists, no technologists, no entrepreneurs, etc.)?”
“Darrell Issa, a member of the Judiciary Committee, is an inventor. He holds the most patents of anyone who ever has served in Congress. He himself owns intellectual property — and benefits from a strong streamlined system. Here, however, the legislative proponents seemed clueless about what the heck the Internet really is.
“Even Rep. Issa did not realize the stakes were so serious until the ‘sop to Cyberspace’ hearing. His reaction was along the lines of You guys — out of the blue — are trying to give all this power — to shut down domains, to hold Google responsible for some joker who uploads some random item — to federal bureaucrats? What is being proposed would change, fundamentally, the architecture of the best thing that has happened to humanity in the past 50 years.
How A Small Band of Heroes like Aaron Swartz and Darrell Issa Saved The Internet, and How Hollywood is trying to Pirate it Again
Two years ago, Hollywood, no kidding, masterminded a plot to, in effect, steal the Internet (by criminalizing certain conduct, booby trapping the Web in ways that few non-mega-corporations can cope with). There are signs, as perceptively flagged by the Electronic Frontier Foundation, that the perps are back at it.
The second part of this two-part column reveals an untold part of the story about how they were stopped last time. And shows how, if not again stopped, how it could lead to a fundamental loss of civil rights and freedom on the Internet.
The offending legislation was barreling down the track, seemingly — even in the eyes of the big Internet companies — unstoppable. According to Seamus Kraft, a former Congressional aide intimately involved with stopping the attempted hijacking:
“Enter Team [Darrell] Issa, just before Thanksgiving 2011. A markup for the legislation had been scheduled for mid-December. We had 3 weeks to interdict a scheme that had been in the works for years. And the schemers had all the money and all the guns.
“Team Issa decided that its only hope was to alert the world — and allow a counterforce to mobilize and tell their government how crippling passing this legislation would be. We went into a whiteboarding session — me and 3 developers — walked into a room and walked out 2 days later, bleary eyed.
“What we had developed, nicknamed Madison, is something that would allow everyone to participate, constructively, in the writing of bills. Basically, we hacked together a way that brings in everyone who had been shut out of the process.”
An upshot of that event, not so incidentally, is OpenGovFoundation.org, underwritten mostly by the Knight Foundation and headed by Kraft, bringing constituent light into the legislative and rulemaking process. For his work Kraft was dubbed one of “the 20 most innovative people in democracy 2012” by Techcrunch.com). Kraft:
“We used this program during the legislative markup. Bills live or die by their markup. We broadcast a stable video stream of the proceedings … while following line by line. We used it to give other user proposals thumbs up and thumbs down. Everything from a Congressional markup was modeled online. And we used it to identify who was taking what out and who was putting what in … tearing away the shroud of secrecy and injecting accountability.
“Citizens actually could participate and make their voices heard. At last, someone authentically had invited all the stakeholders into the room. Rep. Issa and other champions, notably Chaffetz and Polis, used this mechanism to ask hard questions and access the know how. It was revolutionary.
“Issa and his allies — backed, online, in real time, by real experts — threw everything they had at the proponents during two marathon days of hearings. Issa proposed amendments to this high-handed bill that the proponents just couldn’t even respond to.
“The proponents hadn’t anticipated sustained or sophisticated opposition. Here they were, in front of the whole world, confronting egregious injustices baked into the proposed legislation.
“Issa kept hammering the committee all day Thursday and Friday. By the end of the day Friday, when it was clear that Issa was just warming up, the chairman suspended the markup. Congress recessed for Christmas.”
That recess gave the forces of Freedom for the Internet (and of speech, the press, and assembly), of whom Aaron Swartz was by the most credible accounts the most important leader, time to rally. Big players, like Wikipedia, Reddit, and Google, began to organize for a January 18, 2012 Web uprising. The snowball started by Aaron Swartz over a year before had become an avalanche.
Issa and his allies provided the Freedom Fighters a clean focal point. Kraft:
“January 18th was chosen because Issa, as chairman, had scheduled a Government Oversight Committee hearing to bring in the experts for that date. With Wikipedia preparing to close shop that day, Google draping its logo in black, and so forth, much of the Internet would be dark … or loudly protesting. But the video stream of the House of Representatives would be live. The combination could have caused the largest “viral video” in history.
“SOPA’s proponents knew that such a campaign could finish them off — forever. They chose a tactical retreat. The bill was formally determined, by leadership and the committee chairman, to be killed a few days before the scheduled hearing.”
The Irresistible Force of the popular will met, and merged with, the Immovable Object of a handful of courageous lawmakers. So ended SOPA.
At least, so ended SOPA 1.0. A sequel, it appears, has been green-lighted by the Motion Picture Association or its constituents. Now creep back those who scheme to take the wild, fertile, and free Internet, throw barbed wire around it, and turn it into a hunting preserve for Hollywood and record companies.
About six months before he died Aaron Swartz recited a truly chilling anecdote. It reveals something about what’s really going on: a desire by those with power to crush liberty.
“I was at an event, and I was talking, and I got introduced to a U.S. senator, one of the strongest proponents of the original … bill, in fact. And I asked him why, despite being such a progressive, despite giving a speech in favor of civil liberties, why he was supporting a bill that would censor the Internet. And, you know, that typical politician smile he had suddenly faded from his face, and his eyes started burning this fiery red. And he started shouting at me, said, ‘Those people on the Internet, they think they can get away with anything! They think they can just put anything up there, and there’s nothing we can do to stop them! They put up everything! They put up our nuclear missiles, 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!’
“Now, as far as I know, nobody has ever put up the U.S.’s nuclear missiles on the Internet. I mean, it’s not something I’ve heard about. But that’s sort of the point. He wasn’t having a rational concern, right? It was this irrational fear that things were out of control. Here was this man, a United States Senator, and those people on the Internet, they were just mocking him. They had to be brought under control. Things had to be under control. And I think that was the attitude of Congress. And just as seeing that fire in that Senator’s eyes scared me, I think those hearings scared a lot of people. They saw this wasn’t the attitude of a thoughtful government trying to resolve trade-offs in order to best represent its citizens. This was more like the attitude of a tyrant. And so the citizens fought back.”
Aaron Swartz is dead now, at age 26. He took his own life after having been tyrannized by the United States Department of Justice, hounded by a prosecutor as merciless as Inspector Javert of Les Miserables infamy. Chairman Issa has written to Attorney General Holder: “The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department’s handling of the case.”
One last time — and perhaps with even more potentially powerful ramifications — Darrell Issa’s integrity — the Immovable Object — joins with the Irresistible Force of the spirit of the people’s paladin, Aaron Swartz. Perhaps Swartz’s death will unleash a more explosive force for freedom than Big Government’s agents foresaw. “You can’t win, Vader. If you strike me down, I shall become more powerful than you can possibly imagine.”
Meanwhile, evidence shows Big Hollywood and the Big Record Industry, again conniving with Big Government, to appropriate the Internet: SOPA 2.0. If they succeed … we — hello Sir Tim — might as well change the Web’s name to C2P2: “Concentration Camp Penny Pritzker.” Let Anonymous take note.
Stopping SOPA, thereby keeping our Constitutional rights protected on the Internet, was a near thing. If Issa had not, by pure chance (or Providence), been a member of the relevant committee; if a scheduling conflict had kept him from the hearing; if he had just missed the cue; if he did not chair another committee giving him clout … the Internet might now, effectively, belong to Sony, Time-Warner, Disney et al … protected, for them, by a minefield of embedded felony statutes under the pretext of “property rights.”
Let us hope that the more affluent beneficiaries of freedom of speech, of the press and of assembly — the founders of Google, Paypal, Twitter and Facebook, for example — take note — and honor the memory of Aaron Swartz. These entrepreneurs flourish, as we all flourish, from an equitable balance of property rights and civil liberty.
Let us pray Silicon Valley doesn’t get caught napping again. Next time could be the last time. Much of free speech, in practice, could be relegated from the Web to … taggers.
The Bill of Rights — including freedom of speech, the press, assembly — on the Web as elsewhere — is far too precious to take for granted.
Eternal vigilance is the price of liberty.
No to SOPA 2.0.