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Why doesn’t Washington understand the Internet?

By Rebecca MacKinnon,

In late 2010, on the eve of the Arab Spring uprisings, a Tunisian blogger asked Egyptian activist Alaa Abdel Fattah what democratic nations should do to help cyber­activists in the Middle East. Abdel Fattah, who had spent time in jail under Hosni Mubarak’s regime, argued that if Western democracies wanted to support the region’s Internet activists, they should put their own houses in order. He called on the world’s democracies to “fight the troubling trends emerging in your own backyards” that “give our own regimes great excuses for their own actions.”

The ominous developments that Abdel Fattah warned about are on display in Washington today in the battle over two anti-piracy bills. This fight is just the latest example of how difficult it is for even an established democracy to protect both intellectual property and intellectual freedom on the Internet — all while keeping people safe, too. It is a challenge that Congress has historically failed to meet.

But Washington is waking up to the new reality: Politics as usual is not compatible with the Internet age, especially when it comes to laws and regulations governing the Web. And the Internet’s key players — along with millions of passionate users who have tended to view Washington as disconnected from their lives — are realizing that they can’t ignore what happens on Capitol Hill. Both sides must now face the long-simmering culture clash between Washington and the Internet, with implications that go far beyond a temporary Wikipedia blackout.

Washington targets isolated, static problems.

On the Web, everything is connected and changing quickly.

Politicians started fighting over Internet policy in earnest in the mid-1990s, when the Web emerged as a serious platform for commerce as well as activities from pornography and crime to artistic expression and political activism. The first battles illustrated the perpetual problem with Internet laws: In seeking to protect people, they tend to be shortsighted and overly broad. To most critics, those were the main problems with the Senate anti-piracy bill known as the Protect IP Act (PIPA), which has been delayed pending changes, and the House measure, the Stop Online Piracy Act (SOPA), which has been put on indefinite hold in the wake of a massive public outcry. Similar problems of scope and consequences trace back to the early days of Internet regulation.

Take the bruising political battles over online pornography and indecency. In 1996, Congress passed the Communications Decency Act, making it a crime to “transmit” indecent material to minors over the Internet. In 1997, the Supreme Court declared the law unconstitutional. According to Justice John Paul Stevens, the law threatened to “torch a large segment of the Internet community” because its language was too vague and would infringe on the free speech rights of adults.

In 1998, Congress tried again with the Child Online Protection Act, requiring all operators of commercial Internet services to restrict access by minors if their sites contained “material harmful to minors” as defined by “contemporary community standards.” The authors of the bill argued that the same legal logic that works in the physical world should work in the digital world and that protecting minors wouldn’t limit adults’ free expression.

A decade-long legal battle ensued. The law was never enforced because the Supreme Court found that its definitions and remedies were too broad to avoid stifling protected speech among adults on the Internet.

The cost of getting the law wrong and failing to keep up with technological change is high. In 1986, at the dawn of the e-mail era and several years before the World Wide Web as we know it was invented, Congress passed the Electronic Communications Privacy Act, which allows law enforcement authorities to request the contents of anybody’s e-mail without any court order or warrant if the data is stored on the servers of a commercial third-party service for longer than 180 days. Why? Because back in 1986, long before the advent of Gmail, Hotmail and other Web-based services, let alone cloud computing, nobody imagined that people would want or need to store confidential information on remote servers for longer than that. Thus anything older than 180 days was considered abandoned.

In an effort to update the law, Google, Facebook, Microsoft, AT&T and a number of other companies have teamed up with civil liberties groups to lobby Congress. They have been stymied by lawmakers on both sides of the aisle who are concerned about the political consequences of appearing soft on crime.

Lobbyists exert huge influence in Washington.

Major Internet players were late to the game.

The fight this past week is a prime example of lobbying in action. According to the campaign finance research company MapLight, during the 2010 election cycle the 32 congressional sponsors of SOPA received nearly $2 million in campaign contributions from the movie, music and TV entertainment industries, which support the bill, compared with slightly more than $500,000 in donations from the software and Internet industries, which oppose it.

The Internet industry — with its large percentage of start-ups and young businesses — has been slow to lobby, but the big players, led by Google, are scrambling to catch up. Google spent nearly $6 million on lobbying in 2011, according to Opensecrets.org. It threw a lavish holiday party for congressional staffers in December. Facebook has beefed up its Washington office from next to nothing in 2010. And Twitter hired a former congressional staffer to set up the company’s office here this past year.

But as Alexis Ohanian of Reddit said this past week: “We spend our money innovating, not lobbying.”

That hands-off attitude is partly responsible for SOPA and PIPA. For years, members of Congress have heard from constituents who want them to protect the nation from crime, terrorism and intellectual property violation. They have not faced equally robust demands that online rights and freedoms be preserved. Congress may not get the Internet, but the Internet doesn’t get Congress, either.

More than a decade ago, Harvard professor Lawrence Lessig wrote a book about how computer code acts as a kind of law, in that it shapes what people can and cannot do in their digital lives. And, as our digital lives become increasingly intertwined with the physical, it shapes our freedoms as well.

The faith that brilliant and fast-moving feats of engineering and computer code will ultimately triumph over Washington’s legal code is one of many reasons most people in Silicon Valley have been inclined to focus on technical solutions to problems, rather than spending their time and money on politics.

Internet companies created the social-media tools that fueled the tea party and Occupy Wall Street insurgencies, and that have helped political candidates rally grass-roots support. Yet before this past week, those companies had not really tapped the power of their own tools to lobby against legislation that runs counter to their interests. Wednesday’s Internet “strike” changed that, allowing Web firms to show political muscle in ways that the entertainment industry cannot easily duplicate.

To stay safe in real life, we give up some liberty.

Online, we’re not ready to sacrifice freedoms.

In 1996, Grateful Dead lyricist and Internet activist John Perry Barlow wrote “A Declaration of the Independence of Cyberspace.” “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace,” he wrote. “On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

In the 16 years since, the government has certainly not left cyberspace alone — because many of “us” have sought its protection from the criminals, pedophiles, bullies, industrial spies, racists, terrorists and others who have invaded the Internet.

Most of us do want the government, which shapes legal code, and the companies, which shape computer code, to defend us against attack and theft: We pay them to do so by giving up a little of our freedom and giving them our taxes, subscription dollars and mouse clicks.

However, the lawmaking norm leans more toward eliminating rather than managing threats online, be they cyber-attacks or intellectual property theft. It has somehow become acceptable to pass laws that presume Internet users are guilty until proven innocent. The Patriot Act and other legislation enable government agents to access a vast range of U.S. citizens’ private digital communications without a warrant — or even a suspicion that a specific individual may be involved in a crime, as the law requires for most physical searches.

SOPA also erred on the side of eliminating threats. To protect intellectual property, the law sought to make Web sites liable for their users’ activities. This would mean sites would have to monitor all users and block any transmissions or postings that could possibly result in a copyright violation charge.

Washington is driven by geography.

The Internet
is global.

Cyberspace, as Justice Stevens pointed out in his 1997 opinion striking down the Communications Decency Act, is a “unique medium . . . located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”

Thus a congressman from Iowa can vote “yea” on a bill that ends up affecting Internet users in Bahrain, who have no way of holding him accountable. That is in part because many globally popular online platforms are headquartered in the United States. Moreover, Web services based outside the country that want to be accessible to American users must also comply with U.S. legislation, affecting their users everywhere else.

In addition, governments around the world tend to copy regulations and laws enacted in North America and Europe, particularly when they provide an opportunity to exercise government power through the Internet. In Tunisia, where a new democracy is striving to take root after toppling a dictator one year ago, Islamists and other conservatives point to laws recently passed or proposed in Western democratic countries as evidence that they are in the global mainstream as they seek to reinstate censorship.

For these reasons, activists around the world had good reason to worry that an anti-piracy bill such as SOPA would force overseas Web sites, if they want American audiences, to set up monitoring and censorship mechanisms. Once in place, these would give governments a new set of excuses to demand user information and removal of content.

For neither the first time nor the last time, Washington is trying to wield power over the Internet in a manner that many Americans believe lacks the consent of the governed, let alone the consent of the networked. After Wednesday’s protests, the anti-piracy bills are effectively dead or indefinitely delayed. But that doesn’t mean the revolution has succeeded.

The computer coding pros — and the millions who depend on their products — have said “no” to legal code they hate. But killing a bad bill is only the first step. The next and more vital step is political innovation. Without a major upgrade, this political system will keep on producing legal code that is Internet-incompatible.

consentofthenetworked@gmail.com

Rebecca MacKinnon is the author of the forthcoming “Consent of the Networked:The Worldwide Struggle for Internet Freedom” and a Schwartz senior fellow at the New America Foundation. Follow her on Twitter @rmack.

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