SOPA would set up US website blacklisting, require search engine censorship, and divide the Internet into “domestic” and “foreign” sites.
In L.P. Hartley’s novel, The Go-Between, he wrote, “The past is a foreign country: they do things differently there.” When Hartley wrote his novel of adolescent sexual awakening he knew nothing of the internet. Had he know he might have been shocked just how quickly the past became a foreign place.
From the perspective of the recently introduced Stop Online Piracy Act (SOPA), which would set up US website blacklisting, require search engine censorship, and divide the Internet into “domestic” and “foreign” sites, the sorts of Internet arguments being made in the late 1990s don’t sound like something from a foreign country so much as something from a foreign planet.
An important strain of thought in the mid-1990s was “cyberlibertarianism,” a view that saw the Internet as something truly novel in world history. This exceptionalist position led to arguments that governments should leave the ‘Net alone; existing law stopped at the modem jack, and beyond was a new realm called cyberspace that would solve its own problems.
“You claim there are problems among us that you need to solve,” wrote rancher, EFF co-founder, and Grateful Dead lyricist John Perry Barlow in a 1996 manifesto to governments. “You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.” The conflicts would be worked out based on the Golden rule—the only one recognized by “all our constituent cultures.” The Internet was its own place, and needed its own government.
As for all the horrific stuff that humans get up to in every place they have so far lived, Barlow downplayed it. “All the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits,” Barlow wrote. It simply wasn’t possible to “separate the air that chokes from the air upon which wings beat.”
Incredible sentiments when considered 15 years later—but perhaps understandable when coming from someone like Barlow. What was more surprising was that the most famous Internet case of the era went even further.
The Communications Decency Act (CDA) was a Congressional attempt to keep “indecent” (but still legal) online speech away from minors—think of it like an online porn shield. The practical difficulties were immense—how would sites know who a visitor was?—and suggested approaches like requiring a credit card ran headfirst into free speech concerns, given the extent of the material that would be affected.
But when the law was thrown out by a three-judge panel in 1996, Judge Stewart Dalzell went well beyond questions of practicality. “Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig,” he wrote in his opinion. Any content-based regulation!
As a principle, this seemed to invite chaos. Sure, one would gain terrifically in free speech, but freedom didn’t count for much if the Internet’s usefulness was lost in a sea of spam and piracy and phishing sites. Dalzell didn’t shy away from the implication. He concluded:
The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs’ experts put it with such resonance at the hearing:
“What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.”
Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.
Remember, this was a senior federal judge in a highly-watched case—and he explicitly embraced a chaotic Internet. This vision of chaos didn’t mean “anything goes,” exactly, but it was close enough to stir up plenty of opposition from groups like the Family Research Council, which explicitly called out Dalzell’s support of “chaos” and called for “order” on the Internet instead.
The cry of “order!” would be taken up later by the RIAA. “An Internet of chaos may meet a utopian vision but surely undermines the societal values of safe and secure families and job and revenue-creating commerce,” said the music group in 2010. It later called for “an Internet predicated on order, rather than chaos.”
Law professors also provided theoretical reasons why Internet control simply wasn’t practical. “Individual electrons can easily, and without any realistic prospect of detection, ‘enter’ any sovereign’s territory,” wrote law professors David Post and David Johnson in a well-known 1996 Stanford Law Review article. “The volume of electronic communications crossing territorial boundaries is just too great in relation to the resources available to government authorities to permit meaningful control.”
The Internet was borderless! Governments couldn’t stop the signal! But of course they could, and have done so for years, in large part by simply ordering intermediaries like Internet providers and payment processors to take action or risk huge penalties. By 2006, the “non-exceptionalists” were on the offensive, arguing that the Internet did little to remove traditional notions of sovereignty and state control. (See books like Who Controls the Internet? Illusions of a Borderless World by Tim Wu and Jack Goldsmith, or papers like “The Not So ‘Borderless’ Internet’.” The “borderless” Internet began to have plenty of borders—and that wasn’t always a bad thing. (In democratic societies, borders should represent lines of division where people have made different choices about what behavior to allow and condemn.)
How far we’ve come
But SOPA would write these de facto borders right into US law, setting up two classes on online entities. Right up front, the bill defines terms like “Domestic Internet Protocol Address” and “Foreign Internet Site.” The concepts are messy if you think about geography, because a site in Spain can register a .com domain name with a US registrar and be considered “domestic.”
But they make much more sense when you think of the concepts as pertaining to power, not location. The bill doesn’t care if a domain name or an IP address actually resolves to somewhere in the US; it simply relies on the location of the (easy-to-lean-on) registrar or Internet provider to make its determinations.
The trends have been present for years, but if SOPA passes, it will make them explicit: the chaotic, unfilterable, borderless Internet of the 1990s is truly dead, replaced by an Internet of order, filtered connections, and national borders.
Balancing chaos and order has always been a challenge; you want to curtail botnets and spam and phishing and other Internet ills without destroying the productive chaos that allowed a million websites and online businesses to launch without permission from any gatekeeper. Early Internet theorists, caught up in this chaos and still somewhat insulated from criminal gang activity behind so much spam and fraud and hacking online today, worried about breaking the Internet’s best qualities. Today, with 15 years of online bad behavior to look back on, governments have increasingly ignored Dalzell—but they sometimes risk imposing so much “order” on the ‘Net that creativity, commerce, and free speech is affected.
How would you strike the proper balance?
Via ars technica