In defeat of SOPA and PIPA, Washington learns not to meddle with 'West Coast Code' (and technology advocates learn the public is with them)Joel Reidenberg in Capital, January 20, 2012
The news today that next week’s planned floor vote on the Protect Intellectual Property Act (PIPA), Senate sibling of the controversial Stop Internet Piracy Act (SOPA) in the House of Representatives, was to be postponed indefinitely, is a big rebuke to Washington. But, more importantly, it's a watershed moment in our understanding of the way the American public instinctively views the relationship between technology and government regulation.
This will have been a shock to legislators, who have been largely left alone by the technology industry even as other giant corporate interests have muscled them nonstop from K Street offices for decades.
But it will also be a great relief to many who have been studying technology and the law over the last several decades: The public, in some intuitive way, shares their concerns for the future. It’s significant enough that major web sites like Wikipedia and Google chose to stage online "blackouts" in protest against the bills or feature huge messages urging users to call their congressional representatives in opposition to them. But the public hears such urgings all the time, and the unusually strong response on this occasion points to something deeper. A relatively slow news week helped the backlash get attention, of course. We already know that technophiles' talents at social media allow them to surprise legislators otherwise sleepy on their issues, to become a powerful ad hoc lobbying force that can deliver a short, sharp shock to the Capitol.
But another feature of these proposals made the response especially vociferous: People get suspicious when the government fiddles with the way the internet actually operates. The film and music industries have achieved sweeping legislative victories in the past with little opposition, in part because they largely (though not entirely) left the technical structure of the internet alone.
This time, SOPA included a controversial provision to alter the domain name system—basically, the internet’s address book that translates a familiar URL like “www.something.com” into a series of numbers used to locate the web page. This was the part of the proposal that opponents argued would “break the internet.”
Early in the week, panicked backers of SOPA and PIPA announced that they would drop its DNS provisions. But that was too late. The idea that the bills would monkey with the very architecture of the internet had taken hold.
Many of the millions who signed petitions and formed opinions this week didn’t really understand the exact functioning of the legislation to begin with (did you?); they just knew that trusted online sourcessaid it would damage the most influential communications medium to emerge in their lifetime.
This reaction rests on a widespread hesitancy about government exercising control over digital technology. Sometimes it's a sensible and fair way to achieve a goal—such as when the government requires a company to store personal data of its customers with certain security measures.
Internet scholars and technologists have long worried about potential abuses of such consolidated legal and technological power, and whether it was possible to motivate the public against such consolidation. The backlash against SOPA and PIPA may indicate that average internet users have absorbed this lesson instinctively.
In 1999, Lawrence Lessig published a classic book about the regulation of the internet, Code and Other Laws of Cyberspace. Building on insights from a number of other writers (including Fordham Law School’s Joel Reidenberg), Lessig argued that the internet’s enormous potential for freedom was threatened by one crucial feature, summarized by the bumper sticker “code is law.”
As Lessig explained it, society can choose to regulate conduct through any of four different “modalities.” Passing a law limiting or forbidding the conduct is only one. Market forces also influence our actions, as do social norms. And finally, “architecture”—the limits of physical space—shape behavior too. So, in addition to laws simply prohibiting discrimination against disabled people, their inclusion in the workforce can be helped or hindered by social stigma (norms), economic disincentives (market), or the presence of wheelchair ramps (architecture). And crucially, the law can shape the other modalities too: It can influence public attitudes, tax or subsidize particular actions, and require certain architecture. In its efforts to reduce disability discrimination, in fact, the government has done all of the above.
These observations may seem obvious now—the book became a classic precisely because it made such intuitive sense—but at the time Lessig wrote as a contrarian. In the 1990s, numerous dreamy visionaries spoke of “cyberspace” as a realm free from all these constraints. In this vision everyone had access, no one made rules, and the lack of physical barriers even liberated us from the limits of architecture.
Lessig, of course, won the argument. We now know and accept that architecture—including the computer programming that controls the way the internet operates—constrains behavior in “cyberspace” and “meatspace” alike. In the wider culture, the supposedly ungovernable internet became progressively tidier and more locked down, ruled by an aristocracy of tech companies. Google’s search algorithm became a sort of law that channels our attention. Apple created its own contained world where it approves every app and everything adheres to the crazy-genius aesthetic rules of the late Steve Jobs. Sites from eBay to Facebook establish their terms of service and penalize the most serious infractions with the deletion of accounts—a sort of virtual death penalty. Indeed, “digital rights management” (DRM) technology that prevents digital copying is a code response to the piracy problem motivating PIPA and SOPA. During most of our daily web surfing, the design of these systems exerts more influence over us than anything Congress does.
As Lessig summed it up: code is law. In another show of his uncanny ability to craft memorable catch phrases, he named the two forces that jointly rule our online lives: “East Coast Code” emanates from Washington, D.C., exemplified by the Code of Federal Regulations, which delimits what broad areas of life are subject to federal regulation. “West Coast Code” is made up of the 1s and 0s that characterize binary code.
A sort of informal separation of powers has kept these realms fairly distinct. Technology companies did not consider Washington especially relevant to their prospects and until recently paid very little attention to the sort of traditional lobbying and campaign contributions employed by other corporations of their size.
Washington, for its part, seldom attempted to influence West Coast Code directly. When it did, it unleashed some of the biggest tech policy battles of the last decade. Ideas such as mandating the use of DRM, banning certain encryption technology, or requiring certain types of content filtering often foundered and always ran into particularly heated opposition.
If this separation of powers is breached, a lot of power will get concentrated. Lessig warned that the combination of political law and computer law could exert enough power to verge on the tyrannical. His colleague Jonathan Zittrain wrote a slyly titled book, The Future of the Internet and How to Stop It, predicting that a future online catastrophe such as a powerful worm or a security flaw might build support for a legal overreaction that would end the open and “generative” character of today’s internet in the name of “cybersecurity.” Certainly there already are examples of such overreaching to validate their fears.
The events of the last week do suggest, however, that a plausible claim that a legislative proposal might “break the internet” is an incredibly powerful rhetorical weapon against it. PIPA and SOPA’s backers have promised to regroup, and when they do they may realize that opening themselves up to such charges was one of their most serious blunders. There has been little effective opposition to other dramatic expansions of their intellectual property rights when they stuck to using law as their mechanism. In the last 20 years the federal government has lengthened the copyright term beyond reason, increased criminal penalties for infringement to extremes, created an entirely new form of trademark rights, and negotiated (largely in secret) international treaties to impose similar laws in other countries. No mass protests occurred.
But the opponents of these and similar bills, which often include the tech companies, probably learned something too. Without articulating it, the public likes that separation of powers. And overall, Americans have accepted the West Coast Code overlords, but aren’t too fond of their East Coast Code counterparts. Lots of measures can be accused of meddling with the fundamental structure of the internet, especially since most voters don’t quite understand what that means. Perhaps such portrayals will become a key talking point of the 21st century—much as accusations that a proposal interferes with the “free market” served as a silver bullet in the 20th.