Benkler on SOPA, PIPA and the moral authority of a networked commons

In a guest post on TechPresident, Harvard law professor Yochai Benkler, aYochai Benkler, Berkman Professor of Entrepreneurial Legal Studies at Harvard, faculty co-director of the Berkman Center for Internet and Society, and author of The Wealth of Networks and The Penguin and the Leviathan.

Seven Lessons from SOPA/PIPA/Megauplaod and Four Proposals on Where We Go From Here” is a compelling read, exploring what we’ve learned about the power of a networked commons in the last week and making substantive suggestions about a way forward.

“We need to be thinking not about what compromises to make around SOPA/PIPA and the OPEN Act, but about what the architecture of freedom in the networked environment requires of copyright law more generally,” writes Benkler. He offers readers recommendations for a way forward for free expression and copyright in the 21st century, not simply more opposition to the proposals contained in Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA), which, for the moment, remain indefinitely delayed in Washington.

I found the most powerful lesson from Benkler to be his final one, however, where he highlights the “moral authority of the networked citizenry vs. the power of money.”

“The power we saw in the hands of networked people is a fundamentally more legitimate source of power than corporate money. Democracies are by and for the people. We believe in one-person, one-vote; and while corporate organizations are enormously useful, and can make us more effective in the pursuit of our life plans and dreams, at root it is us, human beings, flesh and blood, who are the foundational constituents of a democracy. That is why Wikipedia played such a critical role: unlike all the other major sites that shut down. Wikipedia is not a company; Wikipedia, for this purpose, functioned as a mini-democracy within a democracy, where people who continuously volunteer for the public good came together to do something new for the public. *Wikipedia represents a moral force that no commercial site can ever hope to replicate.* Some sites, like Reddit, are sufficiently based on users that they can structure their future protest actions as democratic debates, letting users decide. Extending the debate and collective decision-making feature of the Wikipedia decision to other platforms should play an important role in the future, and will also help to solidify the alliance between networked citizenry and the companies that provide the infrastructure of networked discourse. If the technology industry wants to continue its battle with Hollywood as a battle among paid lobbyists, it may do so, likely at its own peril. But if the industry wants to be able to speak with the moral authority of the networked public sphere, it will have to listen to what the networked public is saying and understand the political alliance as a coalition.

“*The greatest hope from the events of the past two weeks is that we are beginning to see a re-emergence of the possibility of a truly engaged citizenry after decades of the rise of lobbying and money.* I suspect that it is too soon to go after legislative changes that target that ambitious goal directly, as Micah discussed yesterday (“After SOPA/PIPA Victory, Tech is Thinking of Tackling Political Reform.”) But if we can use the enthusiasm and focus to make significant inroads in this narrow and specifically actionable item, perhaps we will also begin to hone a more general a new model of democratic participation for a new generation. A model of citizen participation that is as far from the couch potato’s passivity as the Internet is from broadcast.”

For more on the open Internet Benkler and why this matters, watch our interview from last year’s eG8 Summit, where 20th century ideas clashed with the 21st century economy.

Benkler’s peroration eloquently captures the strong sense I felt last Friday that something had changed last week, when I wrote about the Web changing Washington. I wrote then and believe now that what we saw in the beginning of this young year will reinvigorate the notion that participating in the civic process matters.

As I said then, we’re in unexplored territory. We may have just seen the dawn of new era of networked activism and participatory democracy, borne upon the tidal wave of hundreds of millions of citizens connected by mobile technology, social media platform and open data. If so, that era will also include pervasive electronic surveillance, whether you’re online and offline, with commensurate threats to privacy, security, human rights and civil liberties, and the use of these technologies by autocratic government to suppress dissent or track down dissidents. These issues go straight to the heartwood of Rebecca Mackinnon’s compelling, important new book, “Consent of the Networked: The Global Struggle For Internet Freedom.” Finding a way for forward will not be easy but it’s clearly necessary.

In that context of those concerns it’s hard to feel aglow with optimism about what comes next. What we’ve seen so far in 2012, however, has left me feeling more optimistic about what’s happening in the intersection of citizens, open government and the Internet than I’ve had in some time. All that said, I’m heartened to read that Benkler wrote about “hope.” Traditionally, hope has been one of the most powerful forces for positive social change throughout our shared history.

That optimism, however, must be tempered with realism. Jim Harper, Director of Information Policy Studies and webmaster at Washington Watch, shared two other important commentaries on the week in his post considering whether on the networked activism over SOPA and PIPA is a harbinger of things to come or an aberration:

He’s not unrestrained, but Larry Downes sees the remarkable downfall of legislation to regulate the Internet’s engineering as a harbinger of things to come. Jerry Brito, meanwhile, tells us “Why We Won’t See Many Protests like the SOPA Blackout.”

They’re both right—over different time-horizons. The information environment and economics of political organization today are still quite stacked against public participation in our unwieldy federal government. But in time this will change. Congress and Washington, D.C.’s advocacy and lobbying groups now have some idea what the future will feel like.

So far, it feels pretty darn interesting. The future, as cyberpunk noir writer William Gibson has famously said, is already here: it’s just not evenly distributed yet.

If Twitter is against SOPA and PIPA, should it ‘blackout’ like Wikipedia?

As Wikipedia prepares to go dark in protest, prospects for controversial online anti-piracy laws have dimmed in Congress. Now that Wikipedia has committed to such a bold move, will other tech, blogs or media companies follow? In some cases, the answers is clearly yes: Reddit and BoingBoing, for instance, have both said that they’ll be doing a ‘blackout.”

Online pressure to rethink anti-piracy bills that threaten the Internet industries, security and online free speech continues to build, although, as the New York Times reported, many still expect these online piracy bills invite a protracted battle. There are, as it turns out, quite a few people willing to stand up to these bills.

As I wrote in December, one of the big unanswered questions about the Stop Online Piracy Act and its companion bill in the Senate, the PROTECT IP Act, is whether Internet companies would directly engage hundreds of millions of users to advocate against the bill for them in Washington, in the way that Tumblr did last November. To date, Facebook and Google have not committed to doing so.

Today, Twitter CEO Dick Costolo indicated to me that the California-based social media company that he leads will not being ‘shutting down’ on Wednesday — but that it would also continue to be ‘very active.’ The Guardian has picked up on our exchange, publishing a story that focused upon mischaracterized Costolo’s response to a question about Twitter shutting down as him calling Wikipedia’s SOPA protest as ‘silly.’ What Costolo made clear later when Wales asked him about the story, however, is that he was referring to Twitter making such a choice, not Wikipedia.

Following is a storify of the relevant tweets, along with some context for them.

My sense is that, of all of the major social media players — which in 2012 now include Google, Facebook, LinkedIn, Yahoo, Tumblr and MySpace, amongst others — Twitter has been one of the leaders in the technology community for sticking up for its users where it can, particularly with respect to the matter of fighting to make Twitter subpoena from the U.S. Justice Department regarding user data public.

Whether or not Twitter ultimately decides to “shut down” or “black out,” Twitter’s general counsel, Alex Macgillivray deserves all due credit for that decision and others, along with the lucid blog post that explained how SOPA would affect ordinary, non-infringing users.

For a fuller explanation of why these issues stuff matters, I highly recommend reading “Consent of the Networked,” a new must-read book on Internet freedom by former CNN journalist and co-founder of Global Voices Rebecca MacKinnon. These sorts of decisions and precedents are deeply important in the 21st century, when much of what people think of as speech in the new public square is hosted upon the servers of private services like Twitter, Facebook and Google.

This post has been updated to clarify Costolo’s position, with respect to how the Guardian framed his initial response.

As Wikipedia prepares to go dark in protest, prospects for SOPA and PIPA dim in Congress

Online pressure to rethink anti-piracy bills that threaten the Internet industries, security and online free speech continues to build, although, as the New York Times reported, many still expect these online piracy bills invite a protracted battle. There are, as it turns out, quite a few people willing to stand up to these bills.

More notable criticism of the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives and the PROTECT IP Act in the U.S. Senate went online this weekend. Tim O’Reilly made his case for why SOPA and PIPA are bad industrial policy this weekend. The EFF explained how SOPA and PIPA violate White House principles supporting free speech. The MIT Media Lab came out against the bills with a lucid post by Joi Ito and Ethan Zuckerman explaining why they oppose SOPA and PIPA.

And, despite the paucity of coverage on the TV networks whose parent companies helped write the bills, a prominent blog post on SOPA and PIPA at Craiglist will continue to raise awareness online. The most intense day of online protest looks yet to come: On Wednesday, many websites will “blackout” to protest these bills, including Reddit. The biggest of these to date is Wikipedia’s SOPA initiative: co-founder Jimmy Wales shared on Twitter that Wikipedia will be “blacked out on Wednesday.

For those left wondering why such opposition persists after some sensational headlines this morning, prospects for the Stop Online Piracy Act in the House are significantly damaged but the legislation is not “dead.” Rather, the legislation is shelved until ‘consensus is reached.’ I believe that the writer at the Examiner sourced Rep. Darrell Issa’s statement from late Friday night when he wrote that Rep. Cantor made a ‘surprise statement.’ There’s no such statement in the House Majority Leader’s social media accounts or at GOPLeader.gov. As of this afternoon, requests for a statement to Rep. Cantor’s office have not been returned.

Here’s what actually was released: “Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Rep. Issa in a prepared statement released late Friday night.

Seasoned security scribe Bill Brenner is more reasonable in his caution at CSO Online and at his blog, where he writes that:

It appears SOPA is headed for the shelf due to the rising tide of opposition. Details on the site where I do my day job, CSOonline. I also wrote a post warning people that this isn’t over by a long shot.

Why is it important to be careful about declaring this legislation dead? Consider recent experience on another controversial bill. The White House indicated that they won’t accept a bill that damages freedom of expression or security this weekend. Remember, however, the statements of his administration regarding H.R. 1540, the National Defense Authorization Act (NDAA). President Obama signed the military spending bill into law at the end of 2011. He added an important coda to it, however:

“My Administration will not authorize the indefinite military detention without trial of American citizens,” wrote President Obama in a signing statement.

It’s the actions of presidential administrations in the future, given detention powers in the NDAA, that worry many observers, including the ACLU. Once such executive authority is granted, it will likely take years for the judicial system to provide a check or balance. And given that the Immigrations and Customs Enforcement division of the Department of Homeland Security has already been taking down websites for over a year, caution for this White House’s position here is warranted.

In one scenario, consider that a heavily amended version of SOPA and PIPA that do contain DNS provisions could make it through Congress, once “consensus is reached” in the House and a filibuster from Senator Wyden in the Senate is overcome.

In the absence of clearer guidance from the House Majority Leader’s office on what’s acceptable in the bill, it remains possible that a deal could still be made which legislative leaders then feel represents “consensus” — Rep. Smith has said he’ll pull the DNS provisions, for instance — and then SOPA could be brought to a vote. The President could add a signing statement and, well, you get the idea.

The Senate version’s of an anti-piracy bill (The PROTECT IP Act) is set for a potential vote next week. 14 Senators are currently publicly opposed to it. Without support from the House or the White House, of course, its prospects to become law in this Congress are damaged but not eliminated. Senator Leahy has indicated that he’d recommend study the impact of the DNS provisions after passage, not pull them entirely. Brad Plumer, who wrote that lawmakers are backing away from online piracy bills, offered this analysis:

Now, that doesn’t mean these bills, or their most controversial features, are dead and buried. Leahy, for one, was pretty clear that still supports passing a bill with DNS-blocking — he just thinks that feature should be studied carefully before it actually gets implemented. (As TechDirt’s Michael Masnick points out, that sounds like a compelling reason to slow down and reconsider before passing the bill, rather than enacting a provision that lawmakers don’t fully understand.)

UPDATE: On Tuesday, January 17th, Rep. Lamar Smith said that markup of SOPA would resume in February. So no, SOPA is not dead. Here’s the statement his office released:

Chairman Smith: “To enact legislation that protects consumers, businesses and jobs from foreign thieves who steal America’s intellectual property, we will continue to bring together industry representatives and Members to find ways to combat online piracy.

“Due to the Republican and Democratic retreats taking place over the next two weeks, markup of the Stop Online Piracy Act is expected to resume in February.

“I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property.”

One of the most powerful politicians in the U.S House has publicly voiced his opposition to the bill, consistent with past opposition to regulatory burdens created in Washington. “The internet is one of the most magnificent expressions of freedom and free enterprise in history,” said Representative Paul Ryan (R-WI), in a statement opposing SOPA. “It should stay that way. While H.R. 3261, the Stop Online Piracy Act, attempts to address a legitimate problem, I believe it creates the precedent and possibility for undue regulation, censorship and legal abuse.”

He’s right. These bills would upend the predictable legal environment created by the Digital Millennium Copyright Act, subjecting online innovators to a new era of uncertainty and risk. Legal experts from the top law schools in the country warn that they would damage free speech. Human rights experts warn that they would would force pervasive scrutiny and surveillance of Internet users’ online activities. Venture capitalists warn would chill the growth of social media and conscript every online platform into a new role as content police. The government’s own cybersecurity experts, at Sandia Labs, warn that these bills would damage DNSSEC, harming national security at a time when American government, businesses and consumers face attacks on their networks and computers every day. The founders of the Internet and World Wide Web warn that would lay the groundwork for an increasingly balkanized Internet, directly undercutting U.S. foreign policy advocacy in support of a single, global, open network.

If you’re curious about where your elected officials in Washington stand, learn whether your U.S. Representative or Senators support SOPA or PIPA using SOPAOpera.org, a Web application made by ProPublica using public data. (A full database is available at ProPublica.org, along with the methodology behind it.)

While Wikipedia and other sites blacking out at this scale is an an unprecedented action, what happens offline is still critical. That’s where laws are still made, after all. While new means of collective action enabled by the Internet are increasingly important, particularly with respect to generating coverage of these bills by the broadcast media, the voices that Representatives and Senators listen to most are those of their constituents. If these bills are important to you, the most effective action that any concerned citizen that wants to talk to Congress can take remains to go see your Senator or Congressman in person, call them or write them a letter.

Rep. Smith pulls DNS provision from SOPA, Rep Issa postpones hearing, White House responds to epetition

The Friday night news dump lives on: at 12:30 AM last night, I received an email from the U.S. House Committee on Oversight and Government Reform: according to the release, Rep. Lamar Smith said he will remove the domain name provision from the Stop Online Piracy Act. Rep. Darrell Issa says he’ll suspend next week’s hearing with Reddit co-founder Alexis Ohanian & other Internet experts. As you may have heard, the United States Congress is considering anti-piracy bills that could cripple Internet industries that are engine of the dynamic economic growth all around the world: the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives and the PROTECT IP Act in the U.S. Senate.

Here’s the release:

House Oversight and Government Reform Committee Chairman Darrell Issa today announced that a hearing scheduled for Wednesday, which was to examine the impact of Domain Name Service (DNS) and search engine blocking on the Internet, has been postponed following assurances that anti-piracy legislation will not move to the House floor this Congress without a consensus.

“While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Chairman Issa. “The voice of the Internet community has been heard. Much more education for Members of Congress about the workings of the Internet is essential if anti-piracy legislation is to be workable and achieve broad appeal.”

“Earlier tonight, Chairman Smith announced that he will remove the DNS blocking provision from his legislation. Although SOPA, despite the removal of this provision, is still a fundamentally flawed bill, I have decided that postponing the scheduled hearing on DNS blocking with technical experts is the best course of action at this time. Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks.”
http://www.keepthewebopen.com

This isn’t the end of the news, however: on the same night, this morning, the White House responded to the “We The People” epetition asking the President to veto the Stop Online Piracy Act & PROTECT IP Act. Cybersecurity coordinator Howard Schmidt, US CTO Aneesh Chopra and OMB intellectual property enforcement coordinator Victoria Espinel wrote it. While they don’t address the veto requested in the epetition, the White House did come out strongly against the DNS provisions in the bills.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Taken in context with Senator Leahy’s statement on reconsidering DNS (albeit not removing it from the bill) and Rep. Lamar Smith saying he’ll remove a DNS provision from SOPA, one of the major concerns that the tech community appears to have been heard and validated. Read my past coverage of SOPA and PIPA at Radar for these concerns, including links to the bills and a white paper from Internet engineers.

The White House, however, did write that “existing tools are not strong enough” and that they want legislation to move forward. That could well be the OPEN Act supported by Senator Ron Wyden and Rep. Darrell Issa.

The MPAA has also weighed in on the Congressional moves. (PDF. Michael O’Leary, senior executive VP for global policy and external affairs for the MPAA:

“We fully support Chairman Smith in his efforts to protect U.S. workers, businesses and consumers
against online theft. We believe his announcement today regarding the Stop Online Piracy Act and
Senator Leahy’s earlier announcement regarding the PROTECT IP Act will help forge an even
broader consensus for legislative action, and we look forward to working with them and other
interested parties in passing strong legislation utilizing the remaining tools at our disposal to protect
American jobs and creativity. We continue to believe that DNS filtering is an important tool, already
used in numerous countries internationally to protect consumers and the intellectual property of
businesses with targeted filters for rogue sites. We are confident that any close examination of DNS
screening will demonstrate that contrary to the claims of some critics, it will not break the Internet.”

Gary Price, who forwarded the MPAA response, also notes that “on Thursday, the Library of Congress named a new Director of Communications. She starts at the end of this month. She was key in the founding of the Pro-SOPA Copyright Alliance and
also worked for the MPAA.

We’ll be seeing reactions to this all weekend. I’ll link to the best of them tomorrow from this story. For now, a couple of things seems clear:

1) The technical concerns of the Internet community appear to have been heard. It’s also likely that the federal government’s own cybersecurity experts, including Sandia Labs and Schmidt himself, influenced Congressional actions here. Senator Leahy, however, has not committed to remove DNS provisions entirely from PIPA, only to research them upon passage. That’s likely to be unsatisfactory to many concerned with the bills. “Trust us” to study it after passage is a tough sell.

2) The White House is supporting the arguments that online piracy is a a “real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers.” That statement should have been supported with more evidence from the government’s research institutions.

3) The response from the White House has to be considered an open government win, with respect to an epetition resulting in a statement from the top IT officials in the country. That said, posting it on a Friday night Saturday morning, as opposed to a response from the President during his Friday news conference, buried* diminished the impact of the news and muted its political impact.

4) Most American citizens oppose government involvement in blocking access to content online, particularly when the word “censor” is accurately applied. When asked if ISPs, social media sites and search engines should block access — as they would under SOPA — only a third of Americans agree.

The White House stated that “we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”

It will be up to the American people to hold them accountable for the commitment.

Update: Here’s Erik Cain, writing at Forbes on the White House response on SOPA:

This pretty clearly pits the Obama Administration against SOPA/PIPA. It also calls for more open and honest discussion about these bills and the problems they seek to address. Since there has been almost no discussion or debate until very recently on the legislation in question, this is a very welcome development.

I admit that while I’m pretty glad to see the administration come out with this sort of in-depth statement on the matter, I have a hard time trusting the president on these issues. His veto pen notably did not come out to quash the NDAA – a bill he vowed at one point to not let past his desk.

Then again, internet regulations may have wide, bipartisan support but still nowhere near the support that a defense funding bill has. Obama may have seen a political fight he couldn’t win, read the writing on the wall, and backed off of the NDAA rather than suffer a blow right before an election. The same does not apply to SOPA/PIPA.

So an executive veto on these bills seems much more likely, though at this point – with various congressmen starting to speak out, lots of companies threatening blackouts of their websites – including Wikipedia and Reddit – we may see the momentum behind these bills grind to a halt. The White House statement on the matter will only help push the conversation in congress. That’s a good thing.

Here’s Matt Yglesias, who writes at Slate that the Obama administration came out against SOPA and PIPA:

It increasingly looks like the SOPA/Protect IP fights are turning into an example of how the political system sometimes does work correctly after all. The con forces on these bills initially looked numerically overwhelmed in congress and hugely outspent. But opponents really mobilized vocally, got people and institutions who don’t normally focus on politics to write about this, and perhaps most important of all demonstrated that more people genuinely cared about this issue than most members of congress initially realized. Now the momentum has slowed incredibly and the White House technology policy team has come out against these bills.

To look a gift horse in the mouth for a second, however, I note that the White House statement does contain a “reasonable” to-be-sure line stating that “online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.”

Greg Sandoval and Declan McCullagh for CNET: DNS provision pulled from SOPA, victory for opponents:

Without the DNS provision, SOPA now looks a great deal more like the OPEN Act, a bill introduced by Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.), which was designed to be an alternative to SOPA. A watered-down SOPA means Smith improves his chances of getting the bill through Congress but at this point, nothing is assured.

Late today came word that six Republican senators have asked Majority Leader Harry Reid to postpone a vote on Pro IP, also known as PIPA. The senators wrote: “Prior to committee action, some members expressed substantive concerns about the bill, and there was a commitment to resolve them prior to floor consideration.”

Leahy issued a statement which appears to be a reply to the request by those senators. He argued that the PIPA vote should go ahead as planned.

“Saying no to debating the [Pro IP Act] hurts the economy,” Leahy wrote. “It says no to the American workers whose livelihoods depend on intellectual property-reliant businesses. And it says yes to the criminals hiding overseas stealing American intellectual property…all Senators should agree that this is a debate we must have…and should support cloture on the motion to proceed on January 24.”

It sounds as if Leahy is trying to keep some of the bill’s supporters from bolting. There’s little question now that some SOPA and PIPA backers in Congress are in retreat and seeking some kind of compromise in the face of significant opposition.

Cory Doctorow at BoingBoing: Lamar Smith and Patrick Leahy blink, pull DNS-blocking out of PIPA and SOPA

After repeatedly insisting that establishing a national censoring firewall with DNS-blocking was critical to the Stop Online Piracy Act, the bill’s sponsor (and chair of the House Judicial Committee) Rep Lamar Smith has blinked. He’s agreed to cut DNS-blocking from the bill, in the face of a threat from rival Rep Darrell Issa, whose House Oversight and Government Reform Committee was preparing to hear expert testimony on the harm that this provision would do to national security and the Internet’s robustness against fraud and worse.

Even without its DNS provisions, SOPA remains terminally flawed, creating a regime that would be terminally hostile to any site that contains links and any site that allows the public to post comments on it. But attention has shifted to PIPA, the Senate version of the bill, which is nearly as bad, and which is rocketing towards an imminent vote.

Timothy Lee at ArsTechnica: Obama administration joins the ranks of SOPA skeptics:

Combine all those concerns, and the statement is a fairly sweeping condemnation of SOPA and PIPA in their current form. Espinel and her colleagues appear to have left enough wiggle room in the statement to allow the president to sign a future version of the bill that addresses some, but not all, of the critics’ concerns. But the bill’s sponsors are now going to have to work hard to satisfy critics and build a consensus in favor of passage.

Tim O’Reilly at Google+ on the White House response to the epetition on SOPA and PIPA:

I found myself profoundly disturbed by something that seems to me to go to the root of the problem in Washington: the failure to correctly diagnose the problem we are trying to solve, but instead to accept, seemingly uncritically, the claims of various interest groups. The offending paragraph is as follows:

“Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders.”

In the entire discussion, I’ve seen no discussion of credible evidence of this economic harm. There’s no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?

In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy. (I have a post coming on that subject on Monday.)

Congress (and the White House) need to spend time thinking hard about how best to grow our economy – and that means being careful not to close off the frontier, or to harm those trying to settle it, in order to protect those who want to remain safe at home. British publishers could have come to America in the 19th century; they chose not to, and as a result, we grew our own indigenous publishing industry, which relied at first, in no small part, on pirating British and European works.

If the goal is really to support jobs and the American economy, internet “protectionism” is not the way to do it.

*The White House emailed me later in the morning to point out that the epetition response was posted on Saturday morning.

As SOPA comes to a vote, O.E.C.D. calls on members to defend Internet freedom

On Wednesday, the Organization for Economic Cooperation and Development called on its members to defend Internet freedoms. “It’s really a milestone in terms of making a statement about openness,” said Karen Kornbluh, the U.S. ambassador to the O.E.C.D., quoted by Eric Pfanner in the New York Times. “You can’t really get the innovation you need in terms of creating jobs unless we work together to protect the openness of the Internet.”

China and Russia come under some scrutiny for recent actions regarding their citizens and the Internet. For instance, distributed denial of service attacks were recently used in Russia in attempts to squelch online speech after the elections.

The United States of America, however, also has a serious Internet freedom issue on its collective hands, as people following the progress of the ‘Stop Online Piracy Act’ (SOPA) through Congress know. If you’re unclear about the issues raised by the Stop Online Piracy Act, read my feature, “Congress considers anti-piracy bills that could cripple Internet industries,” or watch the video below, from the Cato Institute:

Cato Institute research fellow Sanchez asserts “that internet censorship won’t effectively address the problem of piracy and will threaten innovation and the liberties of Americans by engaging in unconstitutional prior restraint.” The video was produced by Caleb Brown, Austin Bragg and Julian Sanchez.

The key O.E.C.D. recommendation relevant to SOPA is the one that urges policy makers to “limit Internet intermediary liability.” If you don’t know what intermediary liability is, watch White House deputy CTO for Internet policy Danny Weitzner explain it at Radar. As Pfanner observed, President Barack Obama has yet to take a public position on SOPA or the PROTECT IP Act.

The House Judiciary Committee addressed some of the concerns raised about SOPA in the manager’s amendment of SOPA. Markup of the bill is scheduled for a hearing this Thursday morning. While some of the most controversial elements in the original bill have been edited (removal of a private right of actor, narrowed range of targets) the use of DNS and filtering as enforcement mechanisms remain. The EFF is not satisfied, stating that the manager’s amendment is “still a disaster.” <Public Knowledge and the Center for Democracy and Technology welcomes the revisions but retained serious concerns.

As Google anti-spam lead Matt Cutts recently pointed out, “some guy” also recently pointed out that SOPA is unconstitutional. The fellow in question happens to be Lawrence Tribe, a professor of constitutional law at Harvard Law School, who released his opinion on SOPA online. “Under standard First Amendment scrutiny, both PROTECT IP & SOPA are clearly unconstitutional,” concurred Marvin Ammori.

What happens next is less clear. It’s unlikely that Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, would have brought SOPA up for markup unless he thought he had the votes to pass it on to the full House of Representatives.

The SOPA “manager’s amendment retains the fundamental flaws of its predecessor,” said Rep. Darrell Issa, chairman of the House Oversight and Government Reform Committee. . Issa told CNET that SOPA won’t be approved unless fixed.

Former Internet entrepreneur Rep. Jared Polis (D-CO) went further, telling CNET that SOPA will “destroy the Internet as we know it.” According to Polis, his staffers haven’t received a single call asking them to pass SOPA, but had “hundreds against” it.”

Many prominent members of the Internet community have come out against SOPA. Thousands of people have added their faces to IWorkForTheInternet.org this week. Notably, earlier this week, Jimmy Wales asked Wikipedia if it should “strike” over SOPA. As of Monday night, about 75% of those responding to his straw poll supported the action. Wikimedia general counsel Geoff Brigham advised the Wikipedia community that SOPA will hurt the free Web and Wikipedia. As of today, we still don’t know whether the world’s biggest encyclopedia will protest tomorrow.

Will any of it make a difference to the eventual legislation or its passage? Stay tuned.

Make Thomas.gov a platform, suggests House Minority Whip Steny Hoyer

Rep Steny Honey at the Congressional Hackathon

How governments deal with social media has been a focal point of friction, fantasy and fierce real-time discussion around the globe in 2011. Tonight in Washington, the first “Congressional hackathon” convened Members of the House of Representatives, staffers, media, developers and citizens at the Capitol Building in Washington to talk about how social media, open government and technology could make the “people’s house” work better for those it represents. I embedded a Storify below that collects tweets and pictures from the event, plan to file a full report at Radar tomorrow and will share video when it becomes available.

In his remarks, House Minority Whip Steny Hoyer addressed how social media is affected Congress and his caucus and open government in the Executive branch. He also cited the growth of open data in cities as a model that Congress should consider for the future of Thomas.gov:

“For Congress, there is still a lot of work to be done, and we have a duty to make the legislative process as open and accessible as possible. One thing we could do is make thomas.gov – where people go to research legislation from current and previous Congresses – easier to use, and accessible by social media. Imagine if a bill in Congress could tweet its own status.

“The data available on thomas.gov should be expanded and made easily accessible by third party systems. Once this happens, developers, like many of you here today, could use legislative data in innovative ways. This will usher in new public-private partnerships that will empower new entrepreneurs who will, in turn, yield benefits to the public sector. One successful example is how cities have made public transit data accessible so developers can use it in apps and websites. The end result has been commuters saving time everyday and seeing more punctual trains and buses as a result of the transparency. Legislative data is far more complex, but the same principles apply. If we make the information available, I am confident that smart people like you will use it in inventive ways.”

If Hoyer and the House leadership would like to see that happen, several attendees at the hackathon suggested to me that Congress could take a specific action: collaborate with the Senate and send the Library of Congress a letter instructing it to provide bulk legislative data access to THOMAS.gov in structured formats so that the developers, designers and citizens around the nation can co-create a better civic experience for everyone.

Here’s the story of the rest of the event, as told in tweets and pictures:

Can a Congressional hackathon make the House of Representatives more social?

It’s time to think different about hacking in Congress. Later this afternoon, I’ll be strolling over to Capitol Hill to participate in what I believe is an unprecedented event: developers working with a bipartisan group of lawmakers and staffers to figure out how to “hack Congress” to make it work better for citizens. Details on the Facebook hackathon are over at the House Majority Leader’s website.

There are a number of reasons that I’m optimistic that we’ll see useful results from today’s efforts.

First, the Republicans have been invested in this area on this since before last year’s election, when the GOP leadership put embracing innovation on the agenda. In April, they sent a letter to the House Clerk regarding legislative data release. Then, in September, a live XML feed for the House floor went online. Yes, there’s a long way to go on open legislative data quality in Congress but there’s support for open government data on both sides of the aisle. Dan Schuman, blogging about what the Sunlight Foundation hopes to see from what he calls a “wonk-a-thon,” lists the many other ways the House has yet to catch up with 21st century technology:

We have yet to see bulk access to THOMAS or public access to CRS reports, important legislative and ethics documents are still unavailable in digital format, many committee hearings still are not online, and so on.

As Schuman highlights there, the Sunlight Foundation has been focused on opening up Congress through technology since, well, there was a Sunlight Foundation. To whit: “There have been several previous collaborative efforts by members of the transparency community to outline how the House of Representatives can be more open and accountable, of which an enduring touchstone is the Open House Project Report, issued in May 2007,” writes Schuman.

Second, the people coming to Congress for some civic coding today aren’t your average group of developers: they’re from Facebook. If you’ve been following technology news, you know that there’s been a fierce competition for development talent in Silicon Valley for years now, with Google and Facebook specifically focused on attracting the best and brightest. It’s fair to say that the world’s largest social network, predicted to go public next year, has had some success on that front. These developers are, naturally, likely to be looking for ways to integrate legislative data, video and RSS into Facebook’s Open Graph Protocol and Facebook’s platform.

Third, I here that there are some new tools for making the process of forming legislation more open to the people set to go online. I’m looking forward to reporting that out to the country.

Will talent, vision and opportunity combine to make the People’s House a more social, open place? Stay tuned.


Sunlight Foundation: Congressional supercommittee is an open government failure as well

The supercommittee isn’t looking super today. The New York Times reported this afternoon that Congressional lawmarkers concede that budget talks are close to failure.

Partisan Fail
"Partisan Fail" by David @Colarusso

Why? Politico’s chief White House correspondent, Mike Allen, dug into the issues in this morning’s Playbook. For those who had hopes that a grand bargain could be made by this group of 12 lawmakers, the reality of tomorrow’s expected announcement is going to be bitter medicine. Allen was an optimist but made a sharp point:

We thought that human factors would prod ambitious members to crack the code, and that the committee would take on its own ecology, regardless of pressures from above or below. But we were punk’d: The supercommittee – one of the most fascinating government experiments of this generation — never existed as a dynamic political organism.

Over at the Sunlight Foundation’s blog, John Wonderlich commented on an additional facet of this historical moment: the failure of the supercommittee on open government. Wonderlich argues that this failure calls into question four assumptions that drove the design of the supercommittee:

  • public discussion is a distraction, and public attention reduces substance
  • fewer voices at the table leads to clarity
  • contrived deadlines created a shared sense of purpose and urgency
  • it’s acceptable for party leaders to force Congress to choose between the supercommittee-creating debt limit “deal” and defaulting on the nation’s debts, with no time to examine the “deal”, and no ability to change

    Wonderlich pulls few punches in his analysis and leaves his readers with a suggestion about “what might have been”:

    What if they had started with other assumptions?

    If the leaders had all decided that deficit reduction needed a contrived process, what other possibilities could they have chosen? What if they had declared a deadline for a fall proposal from the Republicans, and vowed an up or down vote in both the House and Senate on their plan, on the condition that if Republicans fail, Democrats get their chance in the Spring? And that this process would continue until one side’s bill passed? If the agreement were built on the public word of the party leadership, then both parties would start vying for legitimacy, rather than positioning themselves for failure.

    That might be a ridiculous idea. But the point is that the supercommittee process was borne of a particular set of assumptions about how compromise should work, and was structured to reflect those assumptions. Those assumptions have been discredited.

    Secrecy plus power plus contrived deadlines equals embarrassing failure.

    May our leaders see the supercommittee as rock-bottom for their secrecy addiction, rather than finding a new way to double down. And the next time they create a power-sharing scheme, they should remember the difference between their discretion as party leaders, and the expectations for self-governance inherent in a democracy.

    Tomorrow, this particular experiment in representative democracy looks likely to come to end.

    Reps. Issa and Lofgren warn that SOPA is “a bipartisan attempt to regulate the Internet”

    Last week, House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) and Representative Zoe Lofgren sent out a “Dear Colleague” letter to the other members of the House of Representatives entitled “A bipartisan attempt to regulate the Internet?”

    I’ve posted the letter below in its entirety, adding a link to the bill page for the “Stop Online Piracy Act” (SOPA) (H.R. 3261) on Thomas.gov and a PopVox widget after it, and embedded my interview with U.S. Senator Ron Wyden about the PROTECT IP Act, the companion bill to SOPA in the Senate.

    From: The Honorable Zoe Lofgren
    Sent By: Ryan.Clough@mail.house.gov
    Date: 11/8/2011

    Dear Colleague:

    The Judiciary Committee is close to consideration of H.R. 3261, the Stop Online Piracy Act. We write to call your attention to a recent article about the bill in the Los Angeles Times, entitled, “A bipartisan attempt to regulate the Internet?” (available at http://opinion.latimes.com/opinionla/2011/10/technology-a-bipartisan-attempt-to-regulate-the-internet.html).

    We agree with the goal of fighting online copyright infringement, and would support narrowly targeted legislation that does not ensnare legitimate websites. We also believe that a consensus on the issue between the content and technology industries is achievable. As the attached article makes clear, H.R. 3261 unfortunately does not follow a consensus-based approach. It would give the government sweeping new powers to order Internet Service Providers to implement various filtering technologies on their networks. It would also create new forms of private legal action against websites—cutting them off from payment and advertising providers by default, without any court review, upon a complaint from any copyright owner, even one whose work is not necessarily being infringed.

    Online innovation and commerce were responsible for 15 percent of U.S. GDP growth from 2004 to 2009, according to the McKinsey Global Institute. Before we impose a sprawling new regulatory regime on the Internet, we must carefully consider the risks that it could pose for this vital engine of our economy.

    Sincerely,

    Zoe Lofgren
    Member of Congress

    Darrell Issa
    Member of Congress

    Open government data gathers bipartisan support in Washington

    Two weeks ago at the Strata Conference in NYC, I donned a headset, grabbed a tablet worth of questions and headed to the podium to talk with the chairman of the U.S. House Committee on Oversight and Government Reform about data and open government.

    Congressman Darrell Issa (R-CA) joined me via remote webcast from chambers in Washington, D.C. Our crack video team is working on an improved version of this video in which you’ll see my side of the broadcast, along with a boost in audio. Until then, the video that the House Oversight digital team uploaded to YouTube will suffice — and I don’t want to wait to share this story any longer in the meantime, particularly as interest builds behind the principle subject of our conversation, a proposed bill to standardize financial reporting data standards in the federal government and create single database for financial spending.

    Daniel Schuman listened in and summarized our conversation on open government data over at the Sunlight Foundation’s blog:

    The Chairman focused his remarks on the DATA Act, the bipartisan legislation he introduced that would transform how government tracks federal spending and identifies waste, fraud, and abuse.

    He emphasized the importance of making government data available online in real time so that innovative minds can immediately make use the information to build their own businesses. Business, in turn, would help the government identify program mismanagement and data quality problems. The Chairman specifically singled out Vice President Biden as a supporter of efforts to find a common solution to make data available in a systematic way.

    …Chairman Issa explained that the private sector must step up as advocates for greater openness because they will benefit from building and using the tools made possible by greater transparency. He added when government drives down the cost of obtaining information, private individuals will derive value from the analysis of data, not its ownership.

    The cost of good data

    Since our conversation, the Congressional Budget Office has estimated that the DATA Act would cost the government $575 million to implement over 5 years, as reported by FierceGovernmentIT:

    “In a cost estimate dated Sept. 16, the CBO attributes $325 million of the estimated total to requirements in the bill regarding the collecting and reporting of financial information. The DATA Act would require federal agencies, and most government contractors and grant award winners to adopt XBRL as a financial data reporting mechanism.”

    Left unsaid in the CBO estimate is what the impact of this kind of transparency on the federal government’s finances might be, in terms of savings. House Oversight staff have estimated annual savings from standards and centralized spending database that would more than offset that outlay, including:

    • $41 million in funds recovered from questionable recipients
    • $63 million in funds withheld from questionable recipients
    • $5 billion in savings recommended by inspectors general
    • unknown savings resulting from better internal spending control and better oversight by Congressional appropriators.

    The DATA Act, which would expand the role of the Recovery Accountability and Transparency Board to track all federal spending and make all of the information available to the public, has bipartisan support in the Senate from Senator Mark Warner (D-VA), who has introduced a companion bill there.

    As NextGov reported yesterday, efforts to require government-wide spending reports have advanced on the Hill, while President Obama has begun the process of establishing a similar board by executive order.

    You can read more letters of support that extend from well beyond an Open Government Coalition online over at Scribd, including:

    Open government as a bipartisan issue

    Given the White House’s embrace of the mantle of open government on President’s first day in office, the executive branch has gathered a lot of the press, attention, praise, scrutiny and criticism in this area.

    That looks to be changing, and for the better. As Clay Johnson pointed out at the beginning of 2011, any competition between the White House and Congress on open government is likely to be a win for the American people.

    Jim Harper, director of information policy studies at the Cato Foundation and webmaster of WashingtonWatch.com, wrote then that the GOP can eclipse Obama on transparency. “House Republicans can quickly outshine Obama and the Democratic Senate,” he opined. “It all depends on how they implement the watch phrase of their amendment package: “publicly available in electronic form.”

    The GOP House leadership must make sure that this translates into real-time posting of bills, amendments and steps in the legislative process, in formats the Internet can work with. It’s not about documents anymore. It’s about data. Today’s Internet needs the data in these documents.

    There are no technical impediments to a fully transparent Congress. Computers can handle this. The challenges, however, are institutional and practical.”

    Johnson identified the moment in history as an important inflection point, and one that, if the White House rose to the challenge, could legitimately be seen as an open government win for the American people and a smarter, more accountable government.

    The White House may hold the considerable advantages of the bully pulpit and the largest followings of any federal entity or politician on Twitter, for now, but that has to be balanced against the considerable new media prowess that the GOP has built up over their Democratic counterparts in Congress, where Republicans hold an edge on social media.

    While some projects or choices continue to cast questions on commitment in the rank and file to open government principles, with the GOP bending new House rules, there’s progress to report. The leadership of the House of Representatives has supported the creation of open, online video archives, like House.Resource.org. The House revamped its floor feed recently, adding live XML. And House leadership has recently venerated the role of technology in making Congress more transparent, engaged and accountable.

    Rep. Issa, in particularly, appears to have taken on open government as a cause and, for the moment, its rhetoric. He even tweets using the #opengov hashtag. When it comes to the legislature, “the American people have a right to all the data from Congress. They have a right,” he said at a recent forum on Congressional transparency, as reported by Diana Lopez.

    Government secrecy and transparency are, in theory, non-partisan issues. In practice, they are often used a political bludgeons against an opposing party, particularly by a partisan minority, and then discarded once power is gained. For government transparency to outlast a given White House or Congress, laws and regulatory changes have to happen.

    Open government has to be “baked in” to culture, practices, regulations, technology, business practices and public expectations. Needless to say, that’s going to take a while, but it looks like both the administration and some members of Congress are willing to keep trying.

    As these efforts go forward, it will be up to the media, businesses, nonprofits, watchdogs and, of course, citizens to hold them accountable for actions taken, not just rhetoric.

    What’s the future of the DATA Act?

    I’m writing a feature article about the bill, this conversation, context for government performance data and whether open government and transparency will have any legs in the upcoming presidential campaign.

    If you have any questions that are unanswered after watching the conversation, comments about the use of XBRL or perspective on the proposed law’s future in Congress, please ring in in the comments or find me at alex[at]oreilly.com.