SOPA’s Last Gasp: Was the Internet Misinformed?

Posted by Julian Sanchez at http://www.cato-at-liberty.org/sopas-last-gasp-was-the-internet-misinformed/

In the wake of an unprecedented online protest, the Stop Online Piracy Act and PROTECT-IP Act—a pair of ill-conceived proposals to combat digital copyright infringement—appear to be dead for now, and politically toxic for the foreseeable future. But in the proud tradition of the former Iraqi Information Minister,  many supporters of increased Internet regulation remain in profound denial about the scope and seriousness of public resistance to meddling with the structure of the open Net, even for a legitimate purpose like fighting piracy. Exhibit A: Wednesday’s New York Times op-ed by Recording Industry Association of America head Cary Sherman.

On the basis of no discernible evidence, Sherman is determined to believe that literally millions of Internet users who spoke out against online censorship—to say nothing of the scores of eminent constitutional scholars, network engineers, security specialists, and entrepreneurs—were little more than dupes of a few big tech companies.  This was a widely-condemned, lobbyist-scripted proposal whose political viability was so plainly purchased that Hollywood all but demanded a refund when it didn’t pass—yet in Sherman’s mind, incredibly, it was the immense popular backlash against this that “raised questions about how the democratic process functions in the digital age.”
There is a perverse logic to this: What Sherman has in mind is the familiar  “democratic process” where policy is ultimately crafted and debated behind closed doors by powerful institutional stakeholders.  Broader public involvement—should it become an unpleasant necessity—consists exclusively of being roused to enthusiasm or opposition, as necessary, by the stakeholders’ competing marketing campaigns. The defining principle of the modern Web—that users are not passive consumers of ideas, but the source of whatever value and creativity the platform enables—is alien to the model.
Unsurprisingly, Sherman’s op-ed doesn’t really read as though it’s aimed at the general public, but rather as a last desperate pitch over their heads to members of Congress: Pay no attention to the folks in front of the curtain! Since Sherman never takes seriously the possibility that opposition was grounded in well-informed concerns, it is little surprise that he makes scant attempt to seriously address them.
Instead, the piece is an extended exercise in stroking the wounded egos of legislators: You understood the severity of the online piracy problem, having diligently examined our fabricated statistics. You “studied the problem in all its dimensions, through multiple hearings”—only one of which actually concerned SOPA specifically, and all of which were transparently stacked with handpicked supporters of the legislation. Congress heard from Floyd Abrams, commissioned by the film lobby to give the legislation his constitutional seal of approval, but not from more than 100 eminent legal scholars who explained why it was an affront to the First Amendment.  Nor did they hear from the 83 respected network engineers, or the government’s own cybersecurity experts, who warned that it would interfere with efforts to secure the Internet’s Domain Name System against malicious hackers. Indeed, online opposition truly exploded after a session of the House Judiciary Committee where it became embarrassingly clear to the tech community how imperfectly legislators truly understood the network they were regulating, in no small part because the bill’s sponsors had steadfastly resisted holding a hearing with real technical experts. When Rep. Darrell Issa finally scheduled such a hearing, SOPA boosters rapidly retreated on the previously non-negotiable question of DNS blocking, perhaps because they realized how poorly it would reflect on their own process.
What, then, is Sherman’s evidence that opponents were misinformed?  Apparently because they thought a system requiring ISPs to block access to entire web domains—including protected speech along with copyright infringing content—and forcing search engines to redact their results might plausibly be described as “censorship.” Of course, it is so glaringly obvious that this is censorship that Sherman can’t quite bring himself to describe it in literal terms, falling back instead on strained physical analogies and the strange premise that censorship isn’t censorship if you only intend to block bad speech. On this definition, I suppose, censorship only occurs when the authorities approve of the information they are demanding be filtered out.
Beyond that, there’s precious little effort to substantiate the claim that companies opposed to SOPA “drowned out” accurate information by blasting their users with propaganda.  Indeed, the media companies backing the legislation seemed conspicuously uninterested in doing much of anything to inform their own enormous audiences about the legislation—perhaps because they harbored no illusions about how ordinary people would react once they started looking into the proposals. Like Sherman, they weren’t really seeking better informed public participation; they preferred not to have to worry about public participation at all. That suited the copyright lobbies quite nicely for decades as they steamrolled through one bill after another aimed at impoverishing the public domain and swelling corporate coffers, with no compensating benefit in additional creative output.
Hence this editorial, in which Sherman does his best Grima Wormtongue impression, reassuring members of Congress that their wisdom (fed by his solicitous guidance) is unimpeachable, and that any complaints from the masses—even masses taking their cues from legal and technical experts—can only demonstrate the enemy’s willingness to resort to lies and manipulation.  It’s an appealing pitch because it ties into the fiction most legislators will find psychologically necessary to do their jobs: that a few hundred sufficiently wise men and women can aspire to such universal competence that they’re able to make rules on every topic under the sun, however complex, for a vast nation of millions. But uncomfortable as it must be to contemplate that this may not be true, such humility—as Socrates first taught us—is the beginning of true wisdom.