Why doesn’t Washington understand the Internet?
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.