Key Players in the Stop Online Piracy Act and PROTECT-IP Act
November 30th, 2012
This paper examines the stakeholders and processes surrounding the Stop Online Piracy Act (SOPA) and PROTECT-IP Act (PIPA), particularly the events which led up to the Internet blackout protests in January. This is accomplished by interviewing Reddit co-founder and “Mayor of the Internet” Alexis Ohanian as well as a staffer of a Senator who fought against the PROTECT-IP Act. The records of the Wikimedia Foundation and the congressional hearings around the bill are also analyzed and coded for further detail. Throughout the paper, various codes and perspectives are extracted during the content analysis, then abstracted into categories which assist in connecting the different narratives and actors together. The final conclusion is that, much in keeping with popular opinions on the matter, the SOPA and PIPA bills were not crafted with sufficient time and attention paid to the various stakeholders, particularly the ones with technical expertise. This is parlayed into a basis for future research in the area of stakeholdership in technology policy.
1. Introduction and Methodology
This paper seeks to demonstrate the findings of a semester-long research study on the Stop Online Piracy Act (SOPA) and PROTECT-IP (PIPA) – specifically, how the bills were devised and whose voices were considered in their creation and evolution. Though there has not been enough data gathered to generate a substantive theory answering this question in full, the data that has been gathered suggests that there were several experts and communities whose thoughts and opinions were either actively sidelined, or else not fully considered during the bill development process. This is highly significant when considering the future of Internet governance and policy – already, other controversial bills such as the Anti-Counterfeiting Trade Agreement (ACTA) and the Cyber Intelligence Sharing and Protection Act (CISPA) have been brought before legislative bodies. Given these events, it is important to be knowledgeable about how Internet policy is being conducted, so that better policy processes may be created for the future.
The policy processes around these bills were investigated using the Grounded Theory methodology, which makes use of data collected from interviews and archival research to generate theory. This is done through a flexible, though rigorous, process: First, the data is coded, which is the process of discerning codes, which are specific ideas and terms of relevance from interviews and documents. The codes are then developed into categories, which are collections of codes that revolve around higher-level concepts. The categories enable the creation of new “axially-coded” codes, which are developed with the particular categories in mind. These can, in turn, lead to the generation of new categories or modification of existing ones. Finally, all of the codes and categories can be analyzed and connected to generate a theory about the phenomenon being studied. This particular study reached the point at which initial categories were generated.
The data used was collected from interviews with various experts within the Internet business and policy spheres, as well as archival research into videos around the bills, hearings on the bills, and text from the bills themselves. Because of the expertise and extensive research many of the interview subjects brought to the matter, their opinions are considered to be well-formulated and hold significant weight. Politics and “political codes” were not considered in this study; the focus was the policy processes and participation ability of various stakeholders.
Several themes became apparent throughout the testimonies: These were not issues which broke down along traditional political party lines. There were different opinions from different groups and individuals on visions for the Internet and what form they wanted it to take. There were several different communities referred to, such as the technical community, the media industry community, and the Internet community. These led to the generation of many different codes, each of which referred to different aspects of both the Internet itself and the actual policy processes. But perhaps most important were three major categories, which only became visible through a rigorous abstraction from the codes: “Intent,” “Voice,” and “Opportunity.” All of these ideas will be discussed at length.
This paper will first outline the history of the bills, as well as the reaction to them by various communities. Then, the intent and focus of the study will be further clarified, followed by explanations of data gathered through interviews from particular sources and analysis of relevant document. The interviews all occurred within two months of the bills’ demise. Finally, conclusions will be drawn based on the data gathered.
2. History of SOPA, PIPA and Black Wednesday
In May 2011, the Senate was introduced to the PROTECT-IP Act (THOMAS – S.968), and in October 2011, the House received the Stop Online Piracy Act (THOMAS – H.R.3261). The stated objective of these bills was, as the names imply, to curtail the piracy of online materials and protect intellectual property. The text of these bills granted the government broad powers over the Internet, such as enabling the Department of Justice to issue court orders to websites suspected of harboring pirated content. Any websites containing links to pirated material would be responsible for ensuring that they were removed, or face penalties. For example, the popular website Reddit could likely have been the target of enforcement if any of its members made a post which included content deemed to be infringing. The bills were somewhat different in their precise wording, and they were edited and altered frequently throughout the course of their debate. However, in the fall of 2011, a significant degree of protest emerged from various communities and lasted throughout the bills’ development. None of those protesting were satisfied by the aforementioned edits and changes. Wikipedia, Reddit, Google, the ACLU, some members of the House and Senate, and a large number of other organizations and individuals made their displeasure with the bills known, with some traveling to Washington to testify before Congress on the matter.
In December 2011, two days worth of hearings were conducted on the Stop Online Piracy Act. On January 18, 2012, now colloquially known as “Black Wednesday,” just days before the PROTECT-IP Act was set to be voted on, over 115,000 websites either disabled the content on their websites, or else displayed prominent messages vocalizing their opposition to these bills (“Sopa Strike”). Black Wednesday succeeded in capturing the attention of many users who had previously been unfamiliar with the details of these bills. Following the protest, both of the bills were shelved indefinitely. It was considered a huge win by those involved, and has raised questions for many about the future of public participation and the voice of the Internet community.
3. Purpose of Study
This study did not actually begin with a desire to examine SOPA and PIPA. For some time prior, the idea had been forming that technology policymakers may not be considering a sufficient number of factors in their decisions, particularly users’ relationships with the technology in question. SOPA and PIPA served as timely examples to investigate how input from stakeholders was being considered in current Internet policy. This investigation has helped to lay the groundwork for the much larger question of how Internet policy is made.
4. Participants and Documents
A significant number of individuals and documents were interviewed and examined as part of this study. Those interviewed hailed from different backgrounds and areas of the Internet and technology industry. There was a definite bias against the bills amongst those interviewed, as those who were in favor of it numbered fewer and were more difficult to contact. Because of the differing areas of their expertise and the nature of the research process, there were few common questions asked of all participants. There were also several documents analyzed, including the press release of Wikipedia, the interviews conducted on SOPA, and, to a certain extent, the text of the bills themselves.
Despite the disparity in information gathered, it was possible to distill some commonalities between them. They will be discussed at length in the conclusion.
I. Alexis Ohanian
One of the first interviews was with Alexis Ohanian. Ohanian was one of the co-founders of Reddit, a popular social website comprised, in large part, of Internet and technology enthusiasts. Although he sold the company to Conde Nast in 2006, Ohanian has remained heavily involved with the Reddit community, and has frequently referenced this during speaking and news engagements. Both Reddit and Ohanian himself were very active in the debates around SOPA and PIPA; the latter frequently appeared on the news and media circuit and traveled to D.C. to testify before Congress in November 2011. Because of these actions, he was informally declared “Mayor of the Internet” in the summer of 2012 (Greenberg).
Despite this honor, Ohanian has never felt that he formally represents anyone, as nobody has elected him for anything. He did, however, feel he could speak from the perspective of a successful tech entrepreneur. He is adamant that, had the bills been passed years ago, they would have prevented him and his partner from founding Reddit, and that passing them now would similarly stifle future entrepreneurs. As he explained it, company founders would no longer simply need a laptop and Internet connection, but a team of lawyers. As many Web 2.0 startups aggregate data from other websites, they could potentially be classified as “search engines” and fall under the jurisdiction of the bills.
From his perspective, the bills were not formulated with sufficient technical expertise. As he rallied with individuals and organizations, he noted that they crossed political, social, and economic boundaries. “Everyone from MoveOn to Cato” (two politically polar interest groups) was united in opposition to the bills. Ohanian was particularly incensed by a comment from Representative Mel Watt about “not understanding the technology part of this” (covered later).
Ohanian did not mastermind Black Wednesday, or even have much of a role in promoting it. It, and much of the other activity around SOPA, was assisted by the momentum of Reddit and other concerned communities. Ohanian referred to the movement as “leader-full,” in contrast to some who called it leaderless. Individuals became leaders in ways that best helped the cause, and in nontraditional manners. He also made it clear that this was far from the first time that the Reddit community had mobilized around an issue they cared about, referring to a time when they coordinated a campaign to name a whale “Mr. Splashy Pants.” However, he did note that this was the first time Reddit had significantly participated in politics, and seemed to hope that the same type of momentum and decision-making that had characterized Reddit’s actions on SOPA could be used for future bills.
There were several codes that could be found in Ohanian’s interview. One was the notion of “bottom up” – no one was coordinating efforts or telling Redditors how they should protest the bills. A number of small projects, initiatives and plans were devised by a diverse number of participants. Alexis was clear that he never represented anyone, which eschews the notion of a traditional, top-down representation. Another code that emerged was “capability.” The Internet has afforded many capabilities which were previously unavailable – the capability for Alexis to start a company, the capability to make new friends and share interesting content at the click of a button, and the capability for “leader-full” movements to emerge in a concentrated community.
II. Staffer of Democratic Senator opposed to the PROTECT-IP Act (anonymized)
Another interview was conducted with a Senate staffer, who requested that neither his name nor that of the Senator he worked for be disseminated. He was comfortable identifying himself as the aide to a Democratic Senator who opposed the PROTECT-IP Act. He revealed that the Senator has been focused on issues of the Internet for almost two decades. He had also been critical of the Combating Online Infringement and Counterfeits Act (COICA), a bill widely perceived to have been the predecessor to PIPA, which stalled in the Senate. Accordingly, when he first learned of PIPA, it took him no more than twelve minutes to decide that the bill was not only shortsighted, but similar in scope to legislation which had previously been stalled. In making his decisions, he met with many organizations, including public interest groups such as Public Knowledge and the Center for Democracy and Technology.
In the staffer’s estimation, many other Senators who knew less about the Internet examined the bill, discovering that it combated online piracy (a universally sought-after goal) and was supported by both the Chamber of Commerce and the AFL-CIO, which generally tend to represent Republican and Democratic viewpoints respectively. The staffer indicated that, after they heard support from the Motion Picture Association of America, the Senators believed there was little wrong with the bill if all these groups supported it.
Furthermore, opposition built up over time. PIPA was introduced in May 2011, and was not widely opposed at the time. There was a small, but steady stream of opposition from various technologists, lawyers, and other individuals, but concerned Internet companies were, at first, interested in working with the bill’s creators and trying to modify it, rather than dismissing it outright.
Once it became clear that they would not be able to change the bill in a satisfactory manner, different tactics were called for. Then, the lobbying began in earnest, and as more news about the bill traveled around the Internet, the more people came on board to protest.
In the aide’s knowledge of the matter, the bill did not move through proper vetting channels. As he put it, the bill was constructed “behind closed doors” and driven by “narrow special interests rather than our broader, collective interest.” It did not have a committee hearing, and the judiciary committee voted on it without amendment. He also believes that the chairman actively discouraged amendments and made promises to members that he would “fix whatever concerns they had down the road.” Then, Senator Lahey, one of the bill’s original authors, persuaded Senator Reid, the Senate’s Majority Leader, to bring the bill up for vote, which prompted Black Wednesday.
This is not the way bills are supposed to be passed. There must be what the aide called “regular order.” There must be a hearing where all points of view from the public are heard. There should then be a markup in committee, where amendments are offered to improve the bill. Finally, it should then go to the larger legislative body, which can then offer more amendments in the course of debate. If that had happened with the PROTECT-IP Act, the aide believes it would have never reached “all-out nuclear war.”
Codes that emerged from this interview included “knowledge” and “procedure.” With an issue like the Internet, it seems that knowledge of how it worked was key to making an effective decision on these bills. However, it did not appear that the Congressmen and Senators had sufficient knowledge to make an informed decision. Rather, they used secondhand knowledge – who thought these bills were a good idea? – to substitute for knowledge about the issue itself. “Procedure” is also an idea that permeated heavily throughout the interview. What was the appropriate procedure to analyze and pass this bill? Was the procedure properly followed? And how is procedure for lawmaking disrupted when an online movement can change the course of a bill within the span of a day? Understanding the rules for how to act and react in these situations is important for passing good legislation.
III. Wikimedia Foundation
The documents published on the Wikimedia Foundation’s website were analyzed to gain a greater understanding of the organization’s role in Black Wednesday.
Aside from Reddit, Wikimedia was perhaps the most vocal user group to leverage protests against the Stop Online Piracy Act. However, their action came together in a short amount of time, as opposed to building up gradually through several smaller events, as with Reddit. On January 16, 2012, over 1800 members of Wikimedia gathered to debate what actions to take against the bill. This was by far the greatest number of community members to participate in such a discussion, which indicated the extent to which these bills had sparked concern. The majority opinion was that Wikipedia should undergo a global blackout in solidarity with Reddit, which had announced a similar intention days prior. While there were concerns over whether the blackout should remain within the confines of the US-based Wikipedia, 55% of those present were in favor of a global blackout. One British editor was quoted as saying, “American law is America’s business, but law that affects Wikipedia worldwide is an issue of worldwide interest.” From that perspective, the entire global Wikimedia Foundation worked to engineer the blackout in just two days, publishing its intent to do so immediately (“Wikipedia:SOPA initiative/Action”).
As an organization, Wikimedia has generally steered away from politics. As its aim is to be an open repository for information and strive for objectivity, becoming involved in political conversation would distort that image. This helps to place its actions around the blackout in perspective: this was likely the first political action that the foundation had ever undertaken.
By Wikimedia’s own analysis, 162 million users were greeted by the blackout page when attempting to access Wikipedia, and more than 8 million looked up their congressional representatives through the link Wikimedia provided. Twitter hashtags such as #factswithoutwikipedia, #sopastrike, and #wikipediablackout began trending (“Press releases/Wikipedia blackout supports free and open internet”). Augmenting Wikipedia’s considerable influence, sites including Reddit, Cheezburger, KnowYourMeme, Public Knowledge, and Google all either blacked out as well or displayed prominent notices of their position. The effect was too powerful to ignore. Both bills saw many cosponsors drop support within days (THOMAS – S.968 Cosponsors, THOMAS – H.R.3261 Cosponsors), and all the Republican Party nominees at the time publicly denounced it (McCullagh).
On January 20, Wikimedia issued another statement, announcing its satisfaction with the decision made by House and Senate leaders to indefinitely postpone consideration of the bills. However, Executive Director Sue Gardner warned that the bills were not “dead” and would likely return, and also paid homage to the millions of ordinary Internet users who collectively sent Congress a message: “Don’t mess with free expression, don’t destroy the free and open Internet, don’t do the bidding of traditional corporate interests” (“Press releases/Statement on Jan 20 events in Washington”).
Codes from these documents included “free and open” and “empowerment.” Many Internet activists campaign for a free and open Internet, but the precise meaning of that term can often be misunderstood. What is generally meant by such notions is that the users of the Internet are free to use it for certain purposes like connecting, innovating and sharing (“Internet Society”) on an open and inclusive network that all are able to access and participate in equally (“What’s At Stake”). In that sense, Wikimedia’s members and users were truly interested in a free and open Internet. The success of Black Wednesday also spoke to the empowerment of the “average Internet user.” Wikipedia has become a tool that many average Internet users both rely on and help to create. The blackout represented the power that all these average users could now exert. This was a celebration of a new means of empowerment.
IV. SOPA Committee Hearings – Representative Mel Watt
On December 15 and 16, 2011, congressional hearings on the Stop Online Piracy Act were conducted in the House, with each day lasting over eight hours (“Markup of H.R. 3261, Stop Online Piracy Act”). While there were many aspects of the bill discussed, some comments by Representative Mel Watt merit particularly close inspection:
Mr. Watt. Reclaiming my time. I started out — you know, I am not one of these people who is trying to argue about whether I am a nerd or not. I am not a nerd. Hey, I may look like one, I may act like one sometimes, but you know, hey, I am not trying to operate my congressional office without paper, you know. I personally don’t think that is a good idea. But for those of you who have the capability of doing that you are welcome to do it. But what I do know is that if you don’t put some prudential regulation around the Internet and you allow folks to do on the Internet what they can’t do at a pawn shop or in my neighborhood, you know, they will just go to the Internet, which is exactly what you are saying. They are going around the system now, right.
Mr. Chaffetz. Will the gentleman –
Mr. Watt. I am not arguing with you about the technology here.
Mr. Chaffetz. But I am worried about cyber — will the gentleman yield for just a few seconds?
Mr. Watt. I am happy to yield.
Mr. Chaffetz. We have a number of papers from some very qualified people who say that this hurts cybersecurity.
Mr. Watt. Well, I don’t believe –
Mr. Chaffetz. And other than saying, well, we have got to do something, I agree with you.
Mr. Watt. I do not believe that.
Mr. Chaffetz. But with all due respect, how — to just say, well, I don’t believe that, these guys are experts. I am looking for somebody to come before this body and testify in a hearing and say this is why they are wrong, because to date we haven’t had anybody do that.
It can be seen in this conversation that Representative Watt eschews any knowledge of the technology by claiming he is “not a nerd.” However, he does not believe the experts – the so-called nerds – when they offer their assessment that the bill hurts cybersecurity. This reaction suggests the code “intractable.” Despite his self-professed lack of knowledge, Representative Watt clearly possessed a certain opinion on the attitudes and predilections of Internet users. Based on his reaction to cybersecurity, it does not seem that his perspective on this matter could be easily dislodged, keeping the Congressman in an intractably contrary position to the Wikimedia Foundation.
The concerns and debates around the SOPA and PIPA bills were complex and multilayered. Because this study sought material and opinions from across the spectrum of participants, it was difficult to come to a solid conclusion within the time available. However, three major categories could be derived from the connections between the different codes: “Intent,” “Voice,” and “Opportunity.” These categories are some of the key findings of this study and require further elaboration.
Everyone involved in the debates had an intention, but often the actual intent was obscured by the details of what was being said or done. In order to make effective policy, one’s intent must be clear, and when one is dealing with a game-changing entity like the Internet, one must be fully certain that they know how their intent can best be implemented. It may be possible that actors on opposing sides of the debate actually have the same intention, but do not even realize it.
The question of voice is significant in politics. There is widespread concern that large corporations and lobbying interests attain a lopsided voice in comparison to average citizens. However, Black Wednesday has demonstrated that perhaps average citizens can express their voice in a new way. That said, it is important not to forget that the Wikimedia Society, Reddit, and Google are all organizations with their own interests as well – one cannot assume that they now represent the voices not previously heard in politics.
Hand-in-hand with voice is opportunity. Proponents of a free and open Internet emphasize why having such an Internet is vital for new opportunities. It provides new opportunities for working, communicating, entertaining, and educating. Wikipedia, Reddit and the other organizations were worried about SOPA because, they believed, it would restrict the sort of opportunity that had been present before. The MPAA, RIAA, AFL-CIO, and other supporting organizations likely believed the same, except it would restrict the opportunity for piracy and theft. Being clear about what opportunities the Internet should be able to provide will be another significant component for Internet policy.
This research has been an effective “micro-study” to discover what sorts of information, methodologies, and skills will best work to identify policy processes. Future research will likely combine the Grounded Theory methodology with other methodologies, such as Social Network Analysis, Actor-Network Theory, and statistical analysis. The discovery of these categories will enable future use of axial coding, with codes generated around these major ideas. They will also help shape the sorts of questions asked, and ensure a common perspective to understand the issue and reach more thorough conclusions.
“Bill Summary & Status 112th Congress (2011 – 2012) S.968.” THOMAS. Library of Congress, n.d. Web. 5 Oct 2012. <http://thomas.loc.gov/cgi-bin/bdquery/z?d112:SN00968:>.
“Bill Summary & Status 112th Congress (2011 – 2012) H.R.3261.” THOMAS. Library of Congress, n.d. Web. 5 Oct 2012. <http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR03261:>
“Bill Summary & Status 112th Congress (2011 – 2012) S.968 Cosponsors.” THOMAS. Library of Congress, n.d. Web. 20 Nov 2012. <http://thomas.loc.gov/cgi-bin/bdquery/z?d112:SN00968:@@@P>.
“Bill Summary & Status 112th Congress (2011 – 2012) H.R.3261 Cosponsors.” THOMAS. Library of Congress, n.d. Web. 20 Nov 2012. <http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR03261:@@@P>
Greenberg, Andy. “How Reddit’s Alexis Ohanian Became The Mayor Of The Internet.” Forbes. Forbes, 05 06 2012. Web. 7 Oct 2012. <http://www.forbes.com/sites/andygreenberg/2012/06/05/how-reddits-alexis-ohanian-became-the-mayor-of-the-internet>.
McCullagh, Declan. “Republican presidential candidates slam SOPA, Protect IP.” CNET. CNET, 19 2012. Web. 20 Nov 2012. <http://news.cnet.com/8301-31921_3-57362525-281/republican-presidential-candidates-slam-sopa-protect-ip/>.
“Press releases/Statement on Jan 20 events in Washington.” Wikimedia Foundation. Wikimedia Foundation, 20 01 2012. Web. 6 Oct 2012. <http://wikimediafoundation.org/wiki/Press_releases/Statement_on_Jan_20_events_in_Washington>.
“Press releases/Wikipedia blackout supports free and open internet.” Wikimedia Foundation. Wikimedia Foundation, 18 01 2012. Web. 6 Oct 2012. <http://wikimediafoundation.org/wiki/Press_releases/Wikipedia_blackout_supports_free_and_open_internet>.
“SOPA Strike – Largest Online Blackout in History.” SOPA Strike. Fight for the Future, n.d. Web. 5 Oct 2012. <http://sopastrike.com/numbers>.
United States. House of Representatives, Committee on the Judiciary. Markup of H.R. 3261, Stop Online Piracy Act. 2011. Web. <http://judiciary.house.gov/hearings/pdf/transcript12152011.pdf>.
“What’s at Stake?.” Take Action. Google. Web. 21 Nov 2012. <https://www.google.com/intl/en/takeaction/whats-at-stake/>.
“Wikipedia:SOPA initiative/Action.” Wikipedia. Wikimedia Foundation, 16 01 2012. Web. 6 Oct 2012. <http://en.wikipedia.org/wiki/Wikipedia:SOPA_initiative/Action>.
“Values and Principles.” Internet Society. Internet Society. Web. 21 Nov 2012. <http://www.internetsociety.org/who-we-are/mission/values-and-principles>.