TO: FROM: DATE: SUBJECT:

Congressman and Political Staffers Matthew Bruchon December 16, 2011 Issue Alert: Censorship and Corporatization of the Internet

The Internet is a venue for free expression and grassroots organization. Anyone can publish their thoughts online as text, photos, videos or even their own websites. They can also seek out likeminded people and organize; some call President Obama the first Internet president due to the Internets role played in mobilizing his supporters.1 However, the Internets role as a place for unfettered expression is eroding, and its potential to make our society more democratic is in peril. As its economic and political influence have grown, large and powerful corporations have made concerted efforts to filter and censor it for their own profit, and their efforts are gaining traction in Congress. Corporate interests are currently pushing two especially notable efforts to censor the Internet: Creating laws such as the Stop Online Piracy Act (SOPA), which would allow the government or private interests to forcibly remove websites from the Internet Preventing the creation of net neutrality regulations, without which private interests can choose what websites and services Internet users can access

If the Internets role as an outlet for free expression is compromised, our nation will lose a valuable force for democracy. This is especially worrisome given the power of corporations to shape public perception; this power was recently augmented by the Supreme Courts ruling in Citizens United v. Federal Election Commission, which gave corporations the same constitutional rights to expression (and political campaign contributions) as individuals.2 A free and open Internet is a necessary counterbalance to this corporate influence, and proactive policy responses are needed to protect it. In the short term, we should attempt the following: Change the policy process by delegating authority to a nonpartisan panel of experts Prevent immediate passage of SOPA by requiring the panels review of its impacts

In the long term, the following steps will effectively deal with Internet censorship issues:
1

Design a new anti-piracy bill which balances copyright protections with free expression Re-classify the Internet as a telecommunications service, and encode the FCCs guiding principles on net neutrality into a formal legislative mandate

Wasow, Omar. The First Internet President: How Obama tapped netizens to transform American politics. The Root. November 5, 2008. Retrieved December 12, 2011. <http://www.theroot.com/views/first-internet-president>
2

Liptak, Adam. Supreme Court Blocks Ban on Corporate Political Spending. New York Times. January 21, 2010. Retrieved December 12, 2011. < http://www.nytimes.com/2010/01/22/us/politics/22scotus.html>

Background and Framing of Policy Questions The simplest and most effective way for us to frame this class of policy questions is as freedom versus censorship. The notion of censorship is laden with negative connotations, and few people would label themselves as a censor of the American public or an enemy of free speech. In recent history, each of the relevant efforts has been framed in this manner. In framing the SOPA legislation as a censorship tool that impedes free speech, its critics refer to its central provision, which would allow the government, at the request of a copyright holder, to forcibly shut down entire websites that host even one piece of copyrighted material. Sergey Brin, co-founder of Google (one of the most outspoken organizations opposing SOPA), framed the legislation in this manner: (T)he newest threat to free speech has come from none other but the United States... [SOPA gives] the U.S. government and copyright holders extraordinary powers including the ability to censor search results I am shocked that our lawmakers would contemplate such measures that would put us on par with the most oppressive nations in the world.3 The stated intent of SOPA, and that argued by its advocates, is to stop online piracy; this implies that copyright holders rights to their workor, stated differently, their freedom to create and profit from their laborare more important that the freedom of consumers to express or share portions of those works. The debate over net neutrality provisions, which would prevent Internet Service Providers (ISPs) from discriminating against different forms of web traffic or websites, is similarly structured. Supporters of net neutrality say it prevents censorship and promotes freedom and equality, arguing that it guarantees that all sources of data are treated equally, whether the content comes from FOX News or Amnesty International.4 Opponents argue it would encroach upon ISPs freedom to innovate, and would be a form of censorship itself: This is the Obama administration advocating censorship of the Internet they want to silence the voices that are opposing them.5 In both cases, the statements from each side use different basic ideals to frame their arguments. In the case of net neutrality, the two sides argue opposite viewpoints using the same guiding principle of freedom. Given these fundamentally different perspectives, the prospect of building consensus through framing of issues seems dim.
3

Kang, Cecilia. Googles Brin calls SOPA censorship akin to China, Iran. Washington Post Online. December 15, 2011. Retrieved December 15, 2011. < http://www.washingtonpost.com/blogs/post-tech/post/googles-brincalls-sopa-censorship-akin-to-china-iran/2011/12/15/gIQAlV2HwO_blog.html>
4

Aird, Sarah. Net Neutrality: Save the Internet From Corporate Censorship! Human Rights Now: The Amnesty International USA Web Log. December 10, 2010. Retrieved December 15, 2011. <http://blog.amnestyusa.org/us/net-neutrality-save-the-internet-from-corporate-censorship/>
5

Birkey, Andy. Bachmann: Net Neutrality is Censorship. The Minnesota Independent. April 20, 2010. Retrieved December 15, 2011. <http://minnesotaindependent.com/57830/bachmann-net-neutrality-is-censorship>

This lack of consensus suggests we cannot simply frame the issues in a certain way, build consensus on reasonable policies, and enact the policies. However, due to ongoing proactive attempts of corporate interests to force these issuesspecifically, by enacting SOPAa short term policy response is still needed. Short Term Policy Response: Defer to Experts and Prevent Immediate Passage of SOPA The most immediate policy response should be to change the policy process by deferring some authority to a nonpartisan panel of technical experts. Deferral to technical experts is crucial because this policy areas technical complexity prevents the public, and most lawmakers, from understanding most proposed legislation and its consequences. At a recent Congressional committee markup meeting regarding the SOPA legislation, Representative Mel Watt gave the following remarks in response to a proposed amendment related to cybersecurity: (Watt) said he was not a technological nerd, but said he did not believe security experts who said that the internet would become less secure unless Issas amendment was adopted. Im not a person to argue about the technology of this, Watt said before he voted against the amendment.6 This indicates that Watts, and likely other lawmakers, are not capable of assessing SOPAs longterm effects without the help of technical experts or technology policy advisors. In fact, the same committee brought in numerous witnesses at an earlier hearing, but all of them lacked the technical knowledge to understand a key tool of SOPA, and its potential harmful effect on a crucial aspect of Internet security known as DNSSEC: [The Chairman] didnt invite any witnesses who knew anything about domain names or DNSSEC. When the topic came up this morning, one by one, each witnessincluding a lobbyist for the Motion Picture Association of America said they werent qualified to discuss it or DNSSEC.7 This suggests an underlying institutional issue with the policy process: the people being brought in to serve as experts are, at worst, being hand-picked by the political party in control of the committee purely to support their viewpoints or, at best, simply not experts in a comprehensive enough range of technical areas. One fix for this issue is to establish a nonpartisan panel of experts to review the current bill, create a report on its impacts, and recommend a set of changes. The Congressional Research Service could be assigned this responsibility, or a new boundary organization focused on
6

Kravets, David. Blacklisting Provisions Remain in Stop Online Piracy Act. Threat Level: Privacy, Crime and Security Online. December 15, 2011. Retrieved December 15, 2011. <http://www.wired.com/threatlevel/2011/12/sopa-stalls/>
7

McCullagh, Declan. New flap over SOPA copyright bill: Anti-Web security? CNET News: Privacy Inc. November 16, 2011. Retrieved December 13, 2011. < http://news.cnet.com/8301-31921_3-57326228-281/newflap-over-sopa-copyright-bill-anti-web-security>

emerging policy issues in technology (or, more specifically, information technology) could be created. Creating such a nonpartisan panel would not ensure with any level of certainty that the resulting review would favor our offices views and derail SOPA. However, the consensus among a large proportion of experts appears to be against SOPA; a group of more than 80 engineers, inventors and software developers including at least one prominent architect of the Internet has petitioned Congress to block the bill, to name just one example.8 It is likely the panel would, at a minimum, temper the most offensive censorship provisions of the bill. Regardless of the reviews output, its findings would be significantly more grounded in technically sound policies, each of which would have been vetted to determine the consequences, both immediate and unintended. Because of its technical authority, and its authority as a nonpartisan organization, the panels report would be given more credence by the public, and would be difficult for pro-SOPA congressmen to ignore. Net neutrality legislation is a lower priority at present; a bill to outlaw net neutrality failed to pass in the Senate earlier this year, and the FCC has a set of guidelines for net neutrality it plans to enforce in the near term.9 However, a similar nonpartisan expert-based approach might have been useful in dealing with net neutrality, and the same boundary organization could be used to review each policy issue when crafting a new net neutrality law. Long-Term Policy Response: Design Comprehensive Legislation Through Deliberation Once the immediate priority of preventing passage of SOPA in its current form has been accomplished (or after it has failed), we must begin the more lengthy, deliberative process of working with stakeholders to design a long-term portfolio of policy options. The issues of online piracy prevention (the goal of the corporate groups advocating for SOPA) and net neutrality have similar stakeholder groups: they affect virtually everyone who uses the Internet, whether for personal enrichment, group organization and mobilization, or commerce, to name a few possibilities. In the case of online piracy prevention, the most obvious stakeholders are the copyright holders. Even within this group, there may be competing interests; record labels and movie studios may stand to lose great sums of money due to piracy, while independent artists might actually benefit from the additional exposure of content shared online. Various web companies, from search engines to social networking sites, gain traffic due to the sharing of content, including copyrighted content; they may lose advertising revenue if strict anti-piracy laws are enacted. Individual consumers and Internet users are also stakeholders; while most agree that Internet
8

Internet architects oppose US online piracy bills. American Free Press staff article. December 15, 2011. Retrieved December 15, 2011. < http://news.yahoo.com/internet-architects-oppose-us-online-piracy-bills202423913.html>
9

Puzzanghera, Jim. Senate rejects attempt to overturn FCCs net neutrality rules. November 10, 2011. Retrieved December 12, 2011. <http://latimesblogs.latimes.com/technology/2011/11/senate-net-neutrality-vote-.html>

users shouldnt be given free rein to steal copyrighted materials, there are also concerns related to privacy and censorship that must be addressed. For example, if a website were required to monitor its users traffic to ensure illegal materials werent transmitted, the private browsing patterns of the users would need to be monitored and certain actions would need to be blocked. These groups overlap with the groups affected by the issue of net neutrality. For instance, on an Internet without net neutrality, the individual consumer may experience slow or unusable connections to certain websites and services, and fast connections to others (i.e., those with the resources to pay for better connections). Individuals wishing to create websites or post their own content onlineindependent artists, for examplewould face greater barriers to entry. Assuming they have less money to spend than large media corporations (another stakeholder), Internet users visiting their site might get a much slower or less reliable connection. In order to address online piracy effectively, there are a number of questions left to be answered, not the least of which is whether there is any way to stop online piracy that users wont find a way to sneak around. One potential alternative to SOPAs mechanism of censorship is the Online Protection & Enforcement of Digital Trade (OPEN) act, which targets only websites that primarily and willfully pirate files, and uses the International Trade Commission to arbitrate any hearings, rather than the SOPAs black-box Justice Department decisions.10 A number of critiques exist of this, including inefficiencies, loopholes and a bias against small, less-powerful copyright holders.11 Rather than propose a specific set of measures this early in the stage, it is more prudent to suggest a set of guiding principles new anti-piracy legislation should include: Efficiency: the law should be effective in preventing intentional piracy, at a low cost to copyright holders and to websites (such that they can follow the law without undue administrative burden), and without any unintended consequences due to lack of technical expertise. Equality: the law should work equally well for independent copyright holders and large, powerful corporate copyright holders. Freedom: websites should be free to allow legal sharing of data, and the threat of severe punishment shouldnt be so great as to discourage well-intentioned filesharing services (e.g., YouTube) from entering the market. Users should be free to share works in a manner consistent with existing copyright laws, including fair use. Copyright holders and artists should be free to create works and profit from them as they wish.

In terms of net neutrality regulation, a set of workable guidelines already exists. However, they are only a self-prescribed set of goals of the FCC, and havent been encoded into law. This means that any attempts to undermine net neutrality need only change the makeup of the FCC (or
10

Frequently Asked Questions Regarding the ITC and OPEN act. Keep the Web OPEN. Accessed 12/15/2011. < http://keepthewebopen.com/assets/pdfs/faqs.pdf>
11

Aistars, Sandra. Open ACT Falls Short for Artists and Creators. Huffington Post. 12/15/2011. Accessed 12/15/2011. <http://www.huffingtonpost.com/sandra-aistars/stop-online-piracy-act_b_1150642.html>

pass a law changing its mandate); its more difficult to change a law than to tweak the FCCs mission in subtle ways. For example, the net neutrality issue became well-known several years ago when its opposition changed the FCCs ability to regulate the Internet as a telecommunications service, classifying it instead as an information service, which are much more loosely regulated.12 In light of these facts, the following long-term policy responses for net neutrality should be considered: Enact legislation re-classifying the Internet as a telecommunications service, thus restoring the FCCs mandate to regulate it as such. Encode into law the FCCs stated regulatory principles of free expression, transparent ISP service policies, no blocking of content, and no discrimination of content, along with more specific explanations of how to apply these principles to ISPs.

These steps can ensure a future in which the Internet remains a venue for free expression of diverse ideas from diverse groups of people. The Internets freedom of expression is crucial to our democracy, since corporate power is strong and increasing and the Internet can be a counterbalance. This will not happen without proactive policies.

12

Wikipedia contributors. "Network neutrality in the United States." Wikipedia, The Free Encyclopedia. Accessed 12/15/2011.