PIPA / SOPA and the Online Tsunami: A First Draft of the Future

Feb. 2, 2012— -- The unprecedented online revolt against PIPA and SOPA, congressional bills targeting online copyright and trademark infringement, has many Washington insiders scratching their collective heads.

Legislation that seemed poised to steamroll the opposition, based on the simple message that "piracy is bad" and the considerable lobbying horsepower of the movie industry and the chamber of commerce, was stopped dead in its tracks by a popular online uprising culminating in the much-publicized "blackout" of Wikipedia, Reddit and 115,000 other websites on Jan.18. As calls and emails swamped congressional offices, even co-sponsors of the legislation began to abandon ship. Within two days, the Senate canceled plans to try to push through the legislation, and the bills were essentially sunk.

The Washington Post's legendary publisher Philip Graham famously said that news was the "first draft of history ... about a world that we can never fully understand." Already Washington insiders are rushing to shape the "rough draft" about this watershed moment, and their lack of understanding of the Internet "world" is on full display. It may be too early to say for sure what this dramatic turn means for the political landscape or for Washington's future forays into Internet policy, but it is not too soon to debunk the spin and suggest a few lessons learned.

1. First and foremost, the online revolt against SOPA and PIPA was not a command and control operation. Don't believe the claim that Google (or anyone else) orchestrated all these efforts.

The Motion Picture Association of America's Michael O'Leary, for example, recently suggested that the outcry against the legislation "was driven mostly by Google," which used its control over online communications platforms "without any restraint" to mount a "campaign of misinformation, which, frankly, caused the reaction that you saw."

Others are pushing the same message. This is flatly wrong and puts the lack of understanding about how the Internet works on full display.

Opposition and criticism regarding PIPA and SOPA had been mounting for quite some time. My organization released its first warning about the early predecessor to these bills in September 2010. A group of prominent technologists released a report highlighting security risks last May. And prominent bloggers and social media sites have been buzzing about these bills for well over a year. Eventually, it all boiled over into a full-scale online protest, but that protest was neither orchestrated nor controlled by Google or anyone else, nor, given the Internet's lack of a "leader," could it be.

Rather, the protest was decentralized and organic. The tsunami of opposition transcended political divides, with extensive participation from individuals and groups on both the left and the right. It was driven by a commonality of interest in the continued vitality of social networking and "user-generated content" sites – an interest broadly and actively shared by both rank-and-file Internet users and the technology innovation community (entrepreneurs, venture capitalists, technology companies, bloggers, established Internet advocacy groups like CDT and Public Knowledge and savvy new online grassroots organizations).

Those social networking tools enabled that common interest to be harnessed to the common purpose of defeating PIPA and SOPA. This online uprising was not a "tactic". MPAA Chairman Christopher Dodd told the New York Times that "one of the lessons learned" during this event is that the 2-plus million people working in the film industry "need to pipe up," as the Times put it. But Internet users are not "astroturf" and the notion that next time the content community just needs to get its own Internet campaign is entirely the wrong message to take away from this seminal event.

2. The dramatic online mobilization carries lasting implications for Internet policy.

Something profound happened in the last few months. A loose but potent bipartisan community of interest came together in defense of the open Internet. It is not going away. To be sure, the powerful community that rallied against PIPA and SOPA can't and won't get similarly engaged on every issue and on every bill that affects the Internet, and even then, members of the community will not always agree.

This powerful coalescing of interests may not happen anytime soon; however, the potential for this kind of mobilization, and its demonstrated impact, will loom large in future Internet policy discussions. Policymakers that fail to consider the interests and views of the Internet user community will do so at their peril. The day may come when the Internet again rises up in defense of the open Internet, but Congress would be wise to look over its shoulder and tread more cautiously regarding any action that might be viewed as detrimental to the Internet's open, participatory culture.

3. A more cautious approach requires a more open process. Treading cautiously will require, first and foremost, avoiding both the reality and the perception that legislation is the product of backroom dealing by (and for) industry lobbyists. If proponents of PIPA and SOPA take anything away from the January tsunami that swamped Congress, it is that transparency and a fair process matter. The anger regarding PIPA and SOPA spread online as the perception grew that powerful industries and congressional leaders were coming together to cut deals for the benefit of specific industries – with little regard for the general impact on the open Internet. Hearings on the legislation seemed more aimed at greasing the skids than at exploring real concerns. As opposition began to increase, the bills' proponents responded by trying to rush the bills through as quickly as possible. Any changes to address concerns were to be at the sole discretion of those who authored the bills, with little time for scrutiny or consensus building.

Some of this may be business as usual in Congress; bill sponsors work hard to pass their legislation and don't readily grant naysayers attention or time to generate momentum. But in future matters regarding the Internet, business as usual won't be sufficient. When there is a broad and diffuse group of Internet users who view themselves as stakeholders, a more open, inclusive and deliberative process must be the first order of business with the Internet community at the table.

4. Ignorance about how the Internet works is no longer an option. Congress needs to engage with the technical community and take its advice seriously. A major theme of the opposition was that Congress was simply ignorant of the technical implications of its proposals. Many leading engineers behind the domain name system warned of problems with PIPA and SOPA. Sandia National Labs said it would undermine cybersecurity. Yet in December, a majority of the House Judiciary Committee appeared content to profess its ignorance of the Internet and proceed regardless, without further input from technical experts. As a widely circulated article observed, it is "no longer OK" for members of Congress to profess their own lack of technical understanding of the Internet even as they cast votes on Internet legislation. Future Internet policy debates need to reflect both better technical understanding and more reliance on true technical experts.

5. Overreaching Internet related legislation is no longer a successful strategy. Proponents of PIPA and SOPA acknowledged that the legislation was no silver bullet against online piracy. Yet they still tried hard to "future proof" the legislation by including multiple and overlapping enforcement tools and open-ended definitions designed to make sure that no future "rogue site" would escape its reach. The end result was sweeping discretion for law enforcement and major concerns about potential overbreadth.

When Internet legislation tries to be address every perceived harm, it sacrifices its ability to be narrowly targeted and draws in a broad swath of lawful Internet actors into the enforcement tent.

6. The Internet community is borderless, and the whole world will be watching. The Internet community does not reside within U.S. borders, and for this reason, the response to SOPA and PIPA was truly international. Advocates and Internet users are keenly aware of the effects U.S. decisions on Internet blocking would have around the world.

Although the media tended to focus on the momentum of U.S. grassroots activism, there was significant international opposition, too. Avaaz, a worldwide online activism network, received more than 3 million signatures on a petition opposing the legislation. More than 50 international Internet and human rights organizations signed letters of opposition, because they immediately grasped the danger these bills held for Internet freedom.

In an op-ed, Ivan Sigal and Rebecca MacKinnon quote a Chinese blogger to summarize the risk: "In China 'copyright' is one of many excuses to crack down on political movements. ... If a new law like SOPA is introduced in the U.S., the Chinese government and official media will use it to support their version of 'anti-piracy.'" It may be that China will do what China will do, but for much of the world Internet policy is a work in progress, and the signals the U.S. sends matter a great deal in how those policies will be written.

Leslie Harris is the president and CEO of the Center for Democracy & Technology