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.