But one proposal gave birth to an organized resistance. Top
government officials tried to force industry to re-engineer key
technologies to dramatically expand government intervention and
oversight, allowing federal law enforcement agents to manipulate core
innovations central to fast-growing but still immature new products and
services.
A small group of entrepreneurs, activists, writers and lawyers banded
together to rally the technology community in opposition. A surprising
coalition of Republican and Democratic lawmakers emerged to support the
freedom fighters, many considered otherwise too liberal or too
conservative to have common cause. Together, they fought back the
proposal and, perhaps, saved a generation of future technological
innovation.
The year was 1993, and the fight was over technology called the
Clipper Chip, which the National Security Agency tried to force cell
phone manufacturers to include in all consumer phones. Clipper was a
government-designed chipset with built-in encryption developed by the
NSA. One of its features, however, was a "key escrow" that gave the
government a permanent backdoor to decrypt any conversation.
It was a terrible, terrible idea.
And the organization that formed to fight the Clipper Chip was the
Electronic Frontier Foundation. In the end, its creation was the only
affect the Clipper Chip actually had.
A not so distant mirror
The more things change, the more
they stay the same. Today, EFF is once again part of a new band of
freedom fighters opposing a similar threat to the Internet: the Stop
Online Piracy Act (SOPA) in the House and the Protect IP Act in the
Senate. Leading technology companies, venture capitalists,
entrepreneurs, start-up CEOs, and activists have all spoken out against
the bills. Their opposition has rallied an impressive bipartisan group
of innovation-friendly legislators to oppose the bills on all fronts.
(See CNET's full SOPA coverage, "
SOPA copyright bill draws fire.")
EFF has been joined by other free speech groups including the ACLU,
the Center for Democracy and Technology, and Public Knowledge. Free
market think tanks including the Heritage Foundation, the Competitive
Enterprise Institute, and TechFreedom have also expressed grave concerns
about the proposed new laws. (Author's disclosure: I am an adjunct
fellow at TechFreedom.)
Last month, for example,
the Heritage Foundation's James Gattuso warned
that SOPA's provisions allowing court-ordered manipulation of search
results would be "the first step down a classic slippery slope of
government interference that has no clear stopping point." Gattuso
noted, as have many others, that SOPA would undermine Internet security
by encouraging offshore DNS servers to circumvent court-ordered blocks.
Growing opposition to SOPA forced House Judiciary Committee Chairman
Lamar Smith (R-Texas) to make significant changes to the bill before a
markup session last month. But that wasn't enough for Reps. Darrell Issa
(R-Ca.), Zoe Lofgren (D-Ca.), Jared Polis (D-Colo.), Jason Chaffetz (R,
Utah) and other committee members, who proposed more drastic surgery to
the flawed bill during a marathon two-day session. Their amendments
were voted down, but the effort kept the bill from moving out of
committee for a planned floor vote.
Sen. Ron Wyden (D-Ore.) has placed a hold on Protect IP, which would
require 60 votes to lift. Senate Majority Leader Harry Reid (D-Nev.) has
promised such a vote, perhaps as
early as January 24).
Congressional opposition has been backstopped by an outpouring of grassroots anger. Most notably, Tumblr,
Firefox
and Reddit used features of their own software to generate opposition
to the bills, including a coordinated American Censorship Day blackout.
During the SOPA hearing,
Tumblr generated nearly 100,000 constituent calls to Congress.
After a campaign organized largely on Reddit, Web site registrar
GoDaddy was forced to retract its long-standing and very public support
for the bill by domain name owners who promised to move their business
elsewhere. Late in December,
the company announced it was "no longer supporting" SOPA or Protect IP.
The law of unintended consequences
The battle is far from
won. But just as the Clipper Chip catalyzed the creation of EFF and
other advocacy groups, the audacity of SOPA and Protect IP has
reawakened a long-sleeping giant in Silicon Valley. Even if it never
passes, the unintended result of the proposed legislation has been the
creation of a new and energized opposition within the technology
community.
That's already a big shift. Technology entrepreneurs and their
investors, for the most part, have tended to avoid Washington at all
costs. "Entrepreneurs and VCs haven't engaged because they haven't
needed to," says David R. Johnson. Now a visiting professor at New York
Law School, Johnson was an early board member of EFF. He served as EFF's
chairman during the crucial period when the organization, after some
bruising battles on Capitol Hill, moved west to focus on litigation and
advocacy. "They don't see Washington as the market maker the way older
industries do. So up until now evading D.C. has been a good thing."
As the information economy has grown, however, lawmakers worldwide
have become increasingly anxious about the perceived lawlessness of
digital life. They've proposed a flurry of laws aimed at curbing
criminal behavior and expanding electronic surveillance, or finding new
ways to tax or otherwise regulate online interactions.
Most go nowhere. Some that pass, such as the 1996 Communications
Decency Act, have failed in the courts. Many are poorly drafted, fueled
by overblown concerns that are often mooted by technological change well
before new laws can be implemented. All too often, entrenched
industries struggling with technological change promote legislation
aimed at crippling new competitors.
In every example, the risk of unintended consequences is severe.
Information technology changes quickly, but laws do not. In the gaps
that emerge, laws often achieve the opposite effect to what was
intended.
Silicon Valley wakes up...for now?
So despite the good work
of advocates including EFF, innocent entrepreneurs and investors
increasingly find it difficult to bring new products and services to
consumers because of new rules and regulations. Ever-earlier in the life
cycle of a startup, company executives have to call in the lawyers.
As Michael Mandel of the Progressive Policy Institute says (PDF),
"the accumulation of regulations has the potential to hamper innovative
and growing sectors, in the same way that a big enough pile of small
stones can dam up a stream."
But SOPA and Protect IP are big enough rocks that Silicon Valley now
seems poised to try to move them, if not simply blow them up.
For example, one new group,
Engine Advocacy,
has been galvanized by opposition to the two bills. At their first
organizational meeting (really a party) last month, over 300
entrepreneurs and investors showed up. Co-founders Josh Mendelsohn and
Mike McGeary are long-time entrepreneurs who currently work with Hattery
Labs in San Francisco. Both have significant political experience.
Mendelsohn believes the time has come for small to medium-sized
technology companies to get involved in shaping technology policy. "Up
until now, it's been the hacker mentality," he said. "There's a general
sense in the tech community that I'll ignore government because it's
irrelevant to me. But that's changing. Technology and the innovation
infrastructure are decreasing the cost of creating businesses that scale
quickly. So the D.C. issues come in sooner."
Even before SOPA, the two had long wondered "why there wasn't a voice
in government for startups." They describe the group as a loose
coalition of entrepreneurs, investors, and startup executives, whose
goal is to educate Silicon Valley on the key regulatory issues that
affect them, and then send their members to Washington to educate
Congress.
Teaming up with Mike Masnick of Floor 64 and Techdirt (and a leading
SOPA opponent), Engine Advocacy has already taken two groups of startup
CEOs to meet with members of the Judiciary Committee and other key
legislators. The response was encouraging. As actual job creators,
Engine Advocacy's organizers feel they had more credibility with
lawmakers than typical lobbyists. According to Masnick, several elected
officials made their first public statements against SOPA after meetings
with his group.
The timing for such meetings couldn't be better. With notable
exceptions, most technology debates in Washington are dangerously
lacking in engineering expertise regardless of the issue being
discussed. At the House Judiciary Committee's sole hearing on SOPA, only
one witness opposed to the bill was allowed to testify--a lawyer for
Google.
Yet Congressmen repeatedly prefaced their comments by admitting they
didn't understand even the basics of the domain name system, Internet
addressing, search engines, social networks, ad networks or online
payment processing--all of which would be significantly affected by the
legislation. (The committee could start
with this letter (PDF) from leading Internet engineers on the dangers of SOPA to cybersecurity and the domain name system.)
Critics have urged Chairman Smith to allow testimony from Internet
engineers and others who understand how the Internet economy actually
works, a plea repeated many times during last month's markup sessions.
As it became clearer that committee members didn't understand key
technical concepts, congress members on both sides of the issue
acknowledged they needed to hear from engineers or, as they were
frequently called at the hearing, "the nerds." (The clip below gives
just one example.)
Keeping the momentum on SOPA and beyond
The question now is whether the "nerds" will demand their
rightful place at any future discussion of technology regulation, or
whether Silicon Valley will ease back into its slumbers.
Establishing a permanent counterbalance to old economy interests
won't be easy. Engine Advocacy's McGeary acknowledges that incumbent
industries who want to reign in technological change are better
organized and know every corridor and office on Capitol Hill by heart.
So using social media and other technical advantages will be critical to
even the odds. "We can't line up soldiers on an open field," McGeary
said. "We need to be rangers and use the tools we have to fight a
guerrilla war. The facts are on our side; not that that always wins."
David Johnson, a hardened veteran of such policy fights, isn't
especially optimistic. "There's a continued failure in Washington to
have a good conversation with the technologists who could really help
engineer approaches to dealing with bad actors. If the government would
only listen long enough to realize that they would have to recognize the
core values of the technical community in return."
Asked what advice he had for new organizations forming to take on
Washington's most embedded interests, Johnson urges both an inside and
an outside strategy. "They need to be vocal and engaged on the outside,
with large numbers of people who are willing to express their concerns
to Washington when appropriate."
"But they should also work from inside," Johnson said. "Engage with
D.C. and make clear that you're not just a source of campaign funds but
also for crafting solutions. The way to win the war is to make a better
case about how technology is enhancing the economy and generating jobs."
If Silicon Valley follows that advice, the innovators may finally
have a chance to educate lawmakers on the unintended consequences of
micromanaging new technologies and emerging markets.
For starters, they can help Congress understand why there's no pride
in lawmakers who boast about their ignorance of industries they feel
compelled to interfere with, especially when those industries are
generating the brightest hope in the economy.
Or, at the very least, get lawmakers to stop referring to those leading the creation of an information-based economy as "nerds."
