Monday, December 19, 2011

Fighting for the Future of the Internet

          Tis the season for your Senators and Congress members to hand out presents to their constituents. 
       No, not you, silly! 

Their REAL constituents---the corporations who have paid them much more money than you are even allowed.

Certain U.S. House members are gleefully hopeful that they can reward their corporate bosses with a huge gift---tied with just the right ribbon to strangle competition, and with a bow to blacklist Internet sites---in time for Christmas. 

As such, Congress is running with two bills, pushed by the motion picture and recording industries, that could lead to Chinese-style censorship and shut down web sites such as YouTube, Facebook, Twitter---most anything that includes user-provided content.

The Stop Online Piracy Act (SOPA—HR 3261) was argued in a House Judiciary Committee markup session Dec. 15-16. Rather than being "marked up," the bill should have been shredded.  The bill might better be called the "Shut Off Practically Anyone" Act or the "Stop Online Privacy Act."  The Senate has a counterpart bill, the Stop Internet Piracy Act (SIPA).  

The House bill "will mean the end of the Internet as we know it," said  Rep. Zoe Lofgren (D-CA), a dissenting member of the House Judicial Committee.

Old Media vs. New Media

The House bill is being backed by the Motion Picture Association of America, the Recording Industry Association of America and the U.S. Chamber of Commerce, which estimates the cost of online content misuse at $135 million a year.

Internet giants Google, Yahoo and Facebook have come out against the legislation.  Yahoo has broken ties with the Chamber of Commerce over it, and Google is considering doing the same. 

Besides the major Internet players, opposition to the bill is more grass roots and can afford fewer lobbyists.  Opposition includes consumers, Internet technology firms,  venture capitalists and First Amendment lawyers.

The more established entertainment industry has put much more money into pushing this bill than the opposing interests.  It is estimated that about 1,000 lobbyists have been in D.C. working on the bill. 

A Misguided Goal: Please Corporate Sponsors

So hell-bent are those touting the bill to please their corporate sponsors--- confounding reason, reality and the public welfare in the process---that the House Judicial Committee chairman has scheduled a markup meeting for Wednesday Dec. 21, when Congress members are trying to get out of town for their holiday break. The idea is that committee chairman Lamar Smith (R-TX) can say that he passed his "online piracy" bill onto the House floor before Christmas. That is all he needs for now---to show his corporate benefactors he got their bill this far, this fast.

The movie/TV/music industry is Smith's number one campaign contributor by industry rank, just as it is of the bill's other principal sponsor, Rep. John Conyers (D-MI).

During the Dec. 15 markup session, reporters heard that a big-time Hollywood lobbyist was hanging out in the Congressional "members only" area.

Further entwining the Congress-Corporate marriage is the fact that former Connecticut Senator Chris Dodd now serves as chairman and CEO of the Motion Picture Association of America.

(Dodd seems to think the Great Firewall of China model for Internet censoring works just swell: "When the Chinese told Google that they had to block sites or they couldn't do business in their country, they managed to figure out how to block sites.")

Disgustingly, two Congressional staffers who helped industry lobbyists write the bills were recently hired by those very industries. Lauren Pastarnack, who served as a senior aide on the Senate Judiciary Committee, was hired to become "director of government relations" of Dodd's Motion Picture Association of America. Allison Halataei, Rep. Smith's former deputy chief of staff, took a job with a music industry trade association where she will be "chief liaison to Capitol Hill."

So, what have we learned here? That the best resume for a staff member of Congress is that she enabled a corporate special interest to rip off the public? Can you imagine how awesome that resume would read? "I helped the United States pass laws that benefited your company at the expense of the public interest."

Further, that the fight for the future of the Internet and democracy is being played out in Congress by nitwits who are clueless about Internet technology; and who fight about who is tweeting what about each other during a committee meeting, and who argue over what kind of pizza to order is truly sickening.

Also sickening is the fact that the Congress members who are pushing this bill are doing so for the wrong reason---an immoral reason: only to reward their corporate masters. Not only do they not care about the bill's impact on the public welfare, they really don't understand it in the first place---and they admit as much.

The bill itself sucks on many levels, and none of which are the underlying merit of busting those who rip off intellectual property.

The rhetoric of the bill's corporate and congressional backers is that they are targeting "foreign rogue sites" and "pirates." The stated intent of the legislation is to protect copyright holders of songs, movies and intellectual property from those who would illegally sell those movies and songs. We would all agree with that, right?

Unfortunately, the bills are so broadly written that they swing a medieval ax that chops down the First (free speech), Fourth (privacy) and Fifth (due process) Amendments. Under the House bill a copyright holder could go to court and, without a hearing, get the government to block web sites, even over materials put there by a third party, like users posting to Facebook.

 Rep. Smith would have a better bill had he handed a box of crayons and some poster board to kindergardners.

Up Against the Wall, Kids!

The bill would make it a felony punishable with five years in prison to stream unauthorized video.  So, if you can't do the time, don't chance putting that video of your daughter and her friends singing a Beatles song on YouTube.

The bill further provides for cutting off credit card and Paypal payments to allegedly offending sites.  What would that mean to eBay?  And, the bill knocks down the privacy door of Internet users as it allows snooping on what users write, read and seek.

Under present law, the Digital Millenium Copyright Act (DMCA), web sites like YouTube and Facebook operate under a notice-and-takedown system: when the Internet site is notified of an infringement, it is taken down.  The allegedly offending content wrangler has an opportunity to make its case why the material is not infringing. The web sites are not required to scrupulously police uploaded content. Under DMCA, web sites have safe harbor protections against secondary liability.  In other words, Facebook cannot be sued for what a site user posts.

Without SOPA, however, already YouTube is being sued by Viacom for $1 billion after Viacom spammed YouTube with 100,000 takedown notifications.  The outcome of that lawsuit could pierce a hole in the safe-harbor immunity of web sites that include user-posted content.  Without SOPA, some entities have put together black lists of web sites, and among those offenders are clearly some innocents.  Universal Music has even named one of its own artists, rapper 50 Cent, as having an offending site.

The mother of a girl who sang a Prince song in the background of a 29-second YouTube video sued Universal after they ordered YouTube to pull the video as infringing on copyright. 

Even without the wide dragnet this bill allows, when the government tried to shut down a child porn site last year, it affected about 70,000 legitimate sites for days.  It even told visitors that the sites, many of which were businesses, were in the child porn business.

The Great Firewall of America

With SOPA, web sites would be subject to Domain Name Server-blocking, which is substantially the technology used by the Great Firewall of China to censor criticism of the Chinese government and spy on anyone the government chooses.   The burden could be on  YouTube, for instance, to monitor its about 24,000 postings an hour for potential copyright infringement.

The House bill front-loads the process to make it easy for a plaintiff to get a quick, temporary restraining order.  The bill goes further to state that the plaintiff is immune from being sued for damages.  In other words, if Comcast claims Netflix is a "pirate" and gets Netflix taken down, costing it millions, but then later at a full hearing Comcast's claim doesn't hold, then Comcast can say, "Oops, my bad," and walk away unscathed.

One hundred lawyers and legal scholars wrote a letter to the House committee stating that the bill would censor free speech and would fly in the face of due process, whereby the accused gets to read the complaint, know who is complaining, who their witnesses are and what their evidence is before appearing in court for a fair hearing. 

Even the attorney for the Motion Picture Association of America, Floyd Abrams, admits, "The Stop Online Piracy Act may result in the blockage or disruption of some protected speech."

Despite all the Constitutional issues raised, the way the bill prescribes the technology to effect Domain Name Server blocking would quickly be circumvented by the real bad guys who would merely hop to different domains. 

We don't cut off the phone company because of what people say over the telephone.  But, SOPA could lead to just that for the Internet.

Bring on the Nerds!

The contentious markup session in the House Judiciary Committee lasted 11 and a half hours the first day and concluded on the second day without being voted along to the full House, to the disappointment of Judicial Committee Chairman Smith. In the face of wide and growing opposition to the bill, Smith as chairman of the committee and leading sponsor of the bill presented his Manager's Amendment, which sought to respond to some objections to the bill without changing the essence of it.

Leading a vocal minority opposing Smith's bill were Lofgren, Jared Polis (D-CO), Darrell Issa (R-CA) and Jason Chaffetz (R-UT).  More than 50 amendments were introduced, many intended to limit the legislation or delay it until the committee could hear from more technical experts.  

Rep. Chaffetz compared the bill to performing surgery on the Internet before the doctor gets into the room and said the committee has moved too fast with too little information to hurry along such sweeping legislation.

Their amendments, however, were summarily voted down by a large majority of committee members, who did not want to discuss objections to the bill.  The average vote on the opposing amendments was 23-8 against.  Smith implored committee members to just go ahead and pass his bill "as is," and said everyone can worry about the details once it hits the full House.

At one point during the meeting, two members got into a food fight of sorts after Rep. Steve King tweeted that he was being bored by the remarks of Rep. Sheila Jackson-Lee.  She found out about the tweet and said she was offended.  Then, the committee argued whether she should use the word "offended." 

Later, Smith sparked another extended discussion when he said that committee members could choose from four kinds of pizza.  That was for members only and none for the poor staffers who were suffering through this shameful display of government in the United States at its highest level.

Still, by the end of the second day of the markup meeting, Friday Dec. 16, the committee adjourned without voting the bill out of committee and on to the full House.  The only traction achieved by opposition members was that more time was needed to hear from "nerds," they said, meaning Internet engineers.

Full-Page Ad In New York Times

On Nov. 16, the day of a House Judiciary Committee hearing, Google and a coalition of Internet companies took out a full-page ad in the New York Times to object to SOPA and SIPA.  The ad was in the form of a letter that the coalition had sent to Senate and House sponsors of the bills. 

On that same day, before Google copyright policy counsel Katherine Oyama testified at a committee hearing, Google's director of public policy, Pablo Chavez,  posted on the Google Public Policy Blog:

"We strongly support the goal of the bill---cracking down on offshore websites that profit from pirated and counterfeited goods---but we’re concerned the way it’s currently written would threaten innovation, jobs and free expression. We are not alone in our concerns. Earlier this week, we joined eight other Internet companies---AOL, eBay, Facebook, LinkedIn, Mozilla, Twitter, Yahoo!, and Zynga---in a letter to Congress, echoing concerns voiced by industry associations, entrepreneurs, small business owners, librarians, law professors, venture capitalists, human rights advocates, cybersecurity experts, public interest groups and tens of thousands of private citizens."

Google said Oyama would offer "recommendations for more targeted ways to combat foreign 'rogue' websites that are dedicated to copyright infringement and trademark counterfeiting, while preserving the innovation and dynamism that has made the Internet such an important driver of economic growth and job creation."

So one-sided was that hearing that it barred many Internet technology representatives who had wanted to testify.  Five people spoke on behalf of the bill, and only one, Google's Oyama, was allowed to appear in opposition to the bill.

However, committee chairman Smith, who is also chief sponsor of the bill, did not get half through his opening remarks before he began bashing Google and claimed Google outright promoted Internet piracy.  The committee basically used Google and Oyama as a piñata and not as a source of anything they actually wanted to hear. 

To underscore how clueless were the five pro-SOPA witnesses, Rep. Dan Lungren (R-CA) asked each panelist a question about DNS (domain name server) blocking.  He got deer-in-the-headlights in reply.  Not one understood the technology they were proposing to apply to foreign and domestic web sites with a massive impact on free speech and the economy.

Pro-SOPA committee members have regularly admitted their ignorance of technology. 

Rep. Issa in the House and Sen. Ron Wyden (D-OR) in the Senate have proposed an alternative bill, called the Online Protection and Enforcement of Digital Trade Act (OPEN).  It needs work but is vastly more fair and better thought out than SOPA and SIPA. 

Internet Entrepreneurship Feared at Stake

The Internet is the most robust economic force we have, and it has driven innovation.  In this sluggish, global economy we would be killing the goose that laid the golden egg to go lights-out on the Internet. 

Investors fear the broad liability cast by these bills. If someone with a great idea wants to start a business, why risk it, and who is going to invest if the company's Internet presence could suddenly be cut off based on even a hollow complaint from a giant competitor?  Future Facebooks would stay in the dorm room, and future Googles might not get out of the garage.

Blackburn Rears Her Head

Not surprisingly, Tennessee 7th District Congresswoman Marsha Blackburn has signed on as a co-sponsor of SOPA.  The Recording  Industry Association of America has been one of Blackburn's biggest donors. 

HR 3261 spans 78 pages of twisted legalese that includes 24 definitions of terms---including a definition for the word "including."  For one who likes to rail against "government regulations" when it suits her, this bill puts Blackburn's corporate sponsors in control of broader regulations than the government could imagine.

Blackburn has proposed her own bill, HR 96, that would strip the Federal Communications Commission of its role since 1934 as watchdog of the public interest. Instead, she who argues against government involvement would put government in the form of Congress---politicians like her instead of experienced agency staff and directors---in charge of the Internet. 

Blackburn's end game is the privatization of the People's Internet, which was developed and paid for by U.S. taxpayers, and which she thinks should be turned over lock, stock and barrel for $1 and good will to some of her other major corporate sponsors, namely the Internet Service Provider cartel of AT&T, Comcast, Verizon and Time Warner. 

Foreign Dictators Are Loving This

Knowing who else is cheering for these bills is all you need to know about how awful they are and why we should run from them. 

"Our State Department can't push for Internet freedom abroad if we pass SOPA at home," said committee member Zoe Lofgren (D-CA). 

China and other foreign authoritarian regimes are intently watching and secretly hoping.  If this bill passes, they will get a free pass from the U.S. to engage in censorship, spying and electronic revolt-crushing.  The U.S. would no longer have a moral platform from which to criticize.

The use of the Internet and social media in the Arab spring uprisings earlier this year got much attention.

After Facebook and Twitter helped protesters organize and revolt in Egypt, dictator Hosni Mubarak cut off Internet connectivity and cell phones on Jan. 28, 2011, by his order to Internet Service Providers and cell phone companies.  The companies said they were obligated by law to follow that order. 

However, the shutdown of communications backfired on Mubarak.  The cutoff brought hundreds of thousands more people into the overthrow of the government and spread beyond Cairo to outlying regions of Egypt.

Syria cut off Internet amid protests in June, 2011.  In Lybia, the Internet was shut down in March, 2011, ahead of planned protests in Tripoli calling for the ouster of Libyan dictator Muammar Gaddafi.  Lybia's interruption of service was relatively brief, however, after Gaddafi considered how that tactic had blown up on the authoritarian regime in Egypt.

Be prepared to hear "kill switch" and "off the grid" as the fight for the future of the Internet continues to be debated beyond this judiciary committee and around the world.

A Fight for the Future

More broadly, the argument over this bill is part of no less than a worldwide fight for the future of the Internet.  Powerful forces are tugging and heaving to get control in this epic battle.

In the United States, on the side of censorship, restrictions and suppression of competition are two primary interests:  1---Big-money, corporate control over the Internet, which was developed and paid for by U.S. taxpayers, to serve not the public interest but rather Wall Street-style profit motives;  2---Federal, state and local governments' desire to silence anti-government protests and speech. 

On the side of keeping the Internet free and open and equal for all are basically everybody else:  1---Citizens who have come to rely on the Internet for news in the abdication of that role by the corporate, mainstream media;  2---Anyone who wants to post opinion that varies with the ruling regimes and corporate powers;  3---Businesses, be they startups or mature, that depend on the Internet to get their messages out quickly, widely and fairly cheaply, and that depend on the Internet to conduct the nuts and bolts of  their businesses as the productivity of the Internet increases their efficiency.

Democracy's Last Stand

Taking stock of the corporate money that has made a bunch of stooges out of the majority of the House Judicial Committee---and of Congress in general---should cause us the fight more fiercely for Internet freedom.  The Internet is democracy's last stand and the last bastion of free speech.

If you were alarmed when you saw SWAT teams ridding public parks of the First Amendment in the form of "Occupy Wall Street," you will be sick when your Internet is blocked after this powerful Congress-Corporate SWAT team clears cyber space of the First Amendment.

In fact, the Internet is the last level playing field, where there is equal opportunity to post and search, even if you are a budding entrepreneur or a dissenting political voice.  U.S. taxpayers funded the development of the Internet.  We don't want to give it up.  The spirit of the Internet must prevail in America against the narrow interests that would throttle it.

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