The Internet Is Not .gov’s to Regulate

March/​April 2012 • Policy Report

On January 18, 2012, more than 7,000 websites across the Internet experienced a “blackout.” Congressional homepages crashed after being overwhelmed by online traffic. Switchboards on Capitol Hill became jammed. And millions of people signed petitions challenging what many considered to be the latest example of government overreach.

The response — an unprecedented act of coordinated protest — reflected the staggering opposition toward two recent pieces of legislation: the Stop Online Privacy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act, or PIPA). Intended to curb online piracy, the bills would in reality readjust the inner architecture of the Internet — to the chagrin of technology entrepreneurs, network engineers, and ordinary citizens throughout the country.

Cato research fellow Julian Sanchez blogged persistently about the bills as the debate heated up. On the day before the blackout, Sanchez joined Alexis Ohanian, cofounder of Reddit, and Craig Newmark, founder of Craigslist, on a panel to discuss the bills. At a Capitol Hill Briefing two days later, leading policy experts from the Cato Institute, Heritage Foundation, Brookings Institution, Competitive Enterprise Institute, and TechFreedom joined forces to discuss the implications of the “rogue website” crackdown. Berin Szoka, founder and president of TechFreedom, noted that the protests reflected a “consistent skepticism about government meddling in the Internet,” particularly in the face of widespread “optimism about technology’s capacity to expand our ability to choose for ourselves.”

What brought on the skepticism? The apocalyptic estimates of the economic harm from online piracy — numbers that often come directly from the content industries pushing SOPA and PIPA — are wildly exaggerated. There is little indication that, with the rise in piracy, output of copyrighted content is in decline. As for signs of destroyed jobs, it is the bills themselves that threaten jobs “by imposing new burdens on U.S. startups and scaring investors away,” as Sanchez wrote in the New York Times.

But even if these economic numbers proved accurate, SOPA and PIPA should be opposed because they are ineffective mechanisms for addressing the purported problems. Online users can easily circumvent the proposed blocks. Shutting down websites does little to deter piracy. “No matter how bad last season’s crops were, witch burnings are a poor policy response,” Sanchez wrote in Wired. Finally, blocking entire web domain names would lay the foundation for a much more sweeping technological architecture of censorship. In essence, shutting down websites would interfere with legal speech that coexists alongside infringing content. This would be a direct violation of the First Amendment. “Under the better view — the view of freedom — these things are not the government’s to regulate,” Jim Harper, Cato’s director of information policy studies, wrote in the Orange County Register.

In short order, these arguments began to resonate. “Libertarians, tech titans poke old‐​school GOPers,” a front‐​page headline in Politico announced — leading into a story that highlighted the impact that classical liberals had on more traditional conservatives. One such congressman, Rep. John Culberson of Texas, tweeted the next day: “I will oppose SOPA/PIPA bcz CATO is correct: the bills create architecture for censorship & I hear 100% opposition from people contacting me.” Republicans abandoned the bills more nimbly — winning credit with the tech industry and clouding the picture of Silicon Valley as a Democratic stronghold. And elsewhere on the Web, two writers on the popular Freakonomics blog discussed the real economic impact of online piracy. “Unlike stealing a car, copying a song doesn’t necessarily inflict a tangible loss on another,” they wrote. The post cited two scholars in presenting its research — Tim Lee and Julian Sanchez — both of the Cato Institute.

Cato has long been a leading voice on issues at the busy intersection of technology and civil liberties. Last year, Harper released an analysis, “Publication Practices for Transparent Government,” which noted that, despite political promises to the contrary, transparency of public data had failed to materialize in any meaningful way. And while free‐​minded individuals across the country cheer the remarkable downfall of the latest attempt to regulate the Internet, the battle itself should give us pause. SOPA was a law proposed amid utter ignorance of the relevant facts. It “was not the exception to the rule,” Aaron Ross Powell, editor of Lib​er​tar​i​an​ism​.org, wrote in a blog post. “Instead, it was just how things are done in Washington.”