Networks of Networks: What Defines Power Politics in the Age of Google? [VIDEO]

The Web changed Washington in one of most powerful uses of the Internet as a platform for collective action the world has ever seen. What does that mean for the future? This afternoon, a powerhouse panel of of big thinkers will talk about the implications of the networked protests that halted the progress of the Stop Online Piracy Act and Protect IP Act in the U.S. Congress. Susan Crawford, Nicco Mele, Elaine Kamarck, Reddit co-founder Alexis Ohanian, and the editorial director of TechPresident, Micah Sifry, will speaking at Harvard University at 4 PM ET today. The panel will be moderated by Alex Jones, director of the Harvard Shorenstein Center Director. The livestream is embedded below. If you’re interested, video of Clay Shirky’s 2011 lecture on journalism and free speech is looping on the channel.

Watch live streaming video from shorensteincenter at livestream.com

Hat tip TechPresident.

As Wikipedia prepares to go dark in protest, prospects for SOPA and PIPA dim in Congress

Online pressure to rethink anti-piracy bills that threaten the Internet industries, security and online free speech continues to build, although, as the New York Times reported, many still expect these online piracy bills invite a protracted battle. There are, as it turns out, quite a few people willing to stand up to these bills.

More notable criticism of the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives and the PROTECT IP Act in the U.S. Senate went online this weekend. Tim O’Reilly made his case for why SOPA and PIPA are bad industrial policy this weekend. The EFF explained how SOPA and PIPA violate White House principles supporting free speech. The MIT Media Lab came out against the bills with a lucid post by Joi Ito and Ethan Zuckerman explaining why they oppose SOPA and PIPA.

And, despite the paucity of coverage on the TV networks whose parent companies helped write the bills, a prominent blog post on SOPA and PIPA at Craiglist will continue to raise awareness online. The most intense day of online protest looks yet to come: On Wednesday, many websites will “blackout” to protest these bills, including Reddit. The biggest of these to date is Wikipedia’s SOPA initiative: co-founder Jimmy Wales shared on Twitter that Wikipedia will be “blacked out on Wednesday.

For those left wondering why such opposition persists after some sensational headlines this morning, prospects for the Stop Online Piracy Act in the House are significantly damaged but the legislation is not “dead.” Rather, the legislation is shelved until ‘consensus is reached.’ I believe that the writer at the Examiner sourced Rep. Darrell Issa’s statement from late Friday night when he wrote that Rep. Cantor made a ‘surprise statement.’ There’s no such statement in the House Majority Leader’s social media accounts or at GOPLeader.gov. As of this afternoon, requests for a statement to Rep. Cantor’s office have not been returned.

Here’s what actually was released: “Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Rep. Issa in a prepared statement released late Friday night.

Seasoned security scribe Bill Brenner is more reasonable in his caution at CSO Online and at his blog, where he writes that:

It appears SOPA is headed for the shelf due to the rising tide of opposition. Details on the site where I do my day job, CSOonline. I also wrote a post warning people that this isn’t over by a long shot.

Why is it important to be careful about declaring this legislation dead? Consider recent experience on another controversial bill. The White House indicated that they won’t accept a bill that damages freedom of expression or security this weekend. Remember, however, the statements of his administration regarding H.R. 1540, the National Defense Authorization Act (NDAA). President Obama signed the military spending bill into law at the end of 2011. He added an important coda to it, however:

“My Administration will not authorize the indefinite military detention without trial of American citizens,” wrote President Obama in a signing statement.

It’s the actions of presidential administrations in the future, given detention powers in the NDAA, that worry many observers, including the ACLU. Once such executive authority is granted, it will likely take years for the judicial system to provide a check or balance. And given that the Immigrations and Customs Enforcement division of the Department of Homeland Security has already been taking down websites for over a year, caution for this White House’s position here is warranted.

In one scenario, consider that a heavily amended version of SOPA and PIPA that do contain DNS provisions could make it through Congress, once “consensus is reached” in the House and a filibuster from Senator Wyden in the Senate is overcome.

In the absence of clearer guidance from the House Majority Leader’s office on what’s acceptable in the bill, it remains possible that a deal could still be made which legislative leaders then feel represents “consensus” — Rep. Smith has said he’ll pull the DNS provisions, for instance — and then SOPA could be brought to a vote. The President could add a signing statement and, well, you get the idea.

The Senate version’s of an anti-piracy bill (The PROTECT IP Act) is set for a potential vote next week. 14 Senators are currently publicly opposed to it. Without support from the House or the White House, of course, its prospects to become law in this Congress are damaged but not eliminated. Senator Leahy has indicated that he’d recommend study the impact of the DNS provisions after passage, not pull them entirely. Brad Plumer, who wrote that lawmakers are backing away from online piracy bills, offered this analysis:

Now, that doesn’t mean these bills, or their most controversial features, are dead and buried. Leahy, for one, was pretty clear that still supports passing a bill with DNS-blocking — he just thinks that feature should be studied carefully before it actually gets implemented. (As TechDirt’s Michael Masnick points out, that sounds like a compelling reason to slow down and reconsider before passing the bill, rather than enacting a provision that lawmakers don’t fully understand.)

UPDATE: On Tuesday, January 17th, Rep. Lamar Smith said that markup of SOPA would resume in February. So no, SOPA is not dead. Here’s the statement his office released:

Chairman Smith: “To enact legislation that protects consumers, businesses and jobs from foreign thieves who steal America’s intellectual property, we will continue to bring together industry representatives and Members to find ways to combat online piracy.

“Due to the Republican and Democratic retreats taking place over the next two weeks, markup of the Stop Online Piracy Act is expected to resume in February.

“I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property.”

One of the most powerful politicians in the U.S House has publicly voiced his opposition to the bill, consistent with past opposition to regulatory burdens created in Washington. “The internet is one of the most magnificent expressions of freedom and free enterprise in history,” said Representative Paul Ryan (R-WI), in a statement opposing SOPA. “It should stay that way. While H.R. 3261, the Stop Online Piracy Act, attempts to address a legitimate problem, I believe it creates the precedent and possibility for undue regulation, censorship and legal abuse.”

He’s right. These bills would upend the predictable legal environment created by the Digital Millennium Copyright Act, subjecting online innovators to a new era of uncertainty and risk. Legal experts from the top law schools in the country warn that they would damage free speech. Human rights experts warn that they would would force pervasive scrutiny and surveillance of Internet users’ online activities. Venture capitalists warn would chill the growth of social media and conscript every online platform into a new role as content police. The government’s own cybersecurity experts, at Sandia Labs, warn that these bills would damage DNSSEC, harming national security at a time when American government, businesses and consumers face attacks on their networks and computers every day. The founders of the Internet and World Wide Web warn that would lay the groundwork for an increasingly balkanized Internet, directly undercutting U.S. foreign policy advocacy in support of a single, global, open network.

If you’re curious about where your elected officials in Washington stand, learn whether your U.S. Representative or Senators support SOPA or PIPA using SOPAOpera.org, a Web application made by ProPublica using public data. (A full database is available at ProPublica.org, along with the methodology behind it.)

While Wikipedia and other sites blacking out at this scale is an an unprecedented action, what happens offline is still critical. That’s where laws are still made, after all. While new means of collective action enabled by the Internet are increasingly important, particularly with respect to generating coverage of these bills by the broadcast media, the voices that Representatives and Senators listen to most are those of their constituents. If these bills are important to you, the most effective action that any concerned citizen that wants to talk to Congress can take remains to go see your Senator or Congressman in person, call them or write them a letter.

Rep. Smith pulls DNS provision from SOPA, Rep Issa postpones hearing, White House responds to epetition

The Friday night news dump lives on: at 12:30 AM last night, I received an email from the U.S. House Committee on Oversight and Government Reform: according to the release, Rep. Lamar Smith said he will remove the domain name provision from the Stop Online Piracy Act. Rep. Darrell Issa says he’ll suspend next week’s hearing with Reddit co-founder Alexis Ohanian & other Internet experts. As you may have heard, the United States Congress is considering anti-piracy bills that could cripple Internet industries that are engine of the dynamic economic growth all around the world: the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives and the PROTECT IP Act in the U.S. Senate.

Here’s the release:

House Oversight and Government Reform Committee Chairman Darrell Issa today announced that a hearing scheduled for Wednesday, which was to examine the impact of Domain Name Service (DNS) and search engine blocking on the Internet, has been postponed following assurances that anti-piracy legislation will not move to the House floor this Congress without a consensus.

“While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House. Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote,” said Chairman Issa. “The voice of the Internet community has been heard. Much more education for Members of Congress about the workings of the Internet is essential if anti-piracy legislation is to be workable and achieve broad appeal.”

“Earlier tonight, Chairman Smith announced that he will remove the DNS blocking provision from his legislation. Although SOPA, despite the removal of this provision, is still a fundamentally flawed bill, I have decided that postponing the scheduled hearing on DNS blocking with technical experts is the best course of action at this time. Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks.”
http://www.keepthewebopen.com

This isn’t the end of the news, however: on the same night, this morning, the White House responded to the “We The People” epetition asking the President to veto the Stop Online Piracy Act & PROTECT IP Act. Cybersecurity coordinator Howard Schmidt, US CTO Aneesh Chopra and OMB intellectual property enforcement coordinator Victoria Espinel wrote it. While they don’t address the veto requested in the epetition, the White House did come out strongly against the DNS provisions in the bills.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Taken in context with Senator Leahy’s statement on reconsidering DNS (albeit not removing it from the bill) and Rep. Lamar Smith saying he’ll remove a DNS provision from SOPA, one of the major concerns that the tech community appears to have been heard and validated. Read my past coverage of SOPA and PIPA at Radar for these concerns, including links to the bills and a white paper from Internet engineers.

The White House, however, did write that “existing tools are not strong enough” and that they want legislation to move forward. That could well be the OPEN Act supported by Senator Ron Wyden and Rep. Darrell Issa.

The MPAA has also weighed in on the Congressional moves. (PDF. Michael O’Leary, senior executive VP for global policy and external affairs for the MPAA:

“We fully support Chairman Smith in his efforts to protect U.S. workers, businesses and consumers
against online theft. We believe his announcement today regarding the Stop Online Piracy Act and
Senator Leahy’s earlier announcement regarding the PROTECT IP Act will help forge an even
broader consensus for legislative action, and we look forward to working with them and other
interested parties in passing strong legislation utilizing the remaining tools at our disposal to protect
American jobs and creativity. We continue to believe that DNS filtering is an important tool, already
used in numerous countries internationally to protect consumers and the intellectual property of
businesses with targeted filters for rogue sites. We are confident that any close examination of DNS
screening will demonstrate that contrary to the claims of some critics, it will not break the Internet.”

Gary Price, who forwarded the MPAA response, also notes that “on Thursday, the Library of Congress named a new Director of Communications. She starts at the end of this month. She was key in the founding of the Pro-SOPA Copyright Alliance and
also worked for the MPAA.

We’ll be seeing reactions to this all weekend. I’ll link to the best of them tomorrow from this story. For now, a couple of things seems clear:

1) The technical concerns of the Internet community appear to have been heard. It’s also likely that the federal government’s own cybersecurity experts, including Sandia Labs and Schmidt himself, influenced Congressional actions here. Senator Leahy, however, has not committed to remove DNS provisions entirely from PIPA, only to research them upon passage. That’s likely to be unsatisfactory to many concerned with the bills. “Trust us” to study it after passage is a tough sell.

2) The White House is supporting the arguments that online piracy is a a “real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers.” That statement should have been supported with more evidence from the government’s research institutions.

3) The response from the White House has to be considered an open government win, with respect to an epetition resulting in a statement from the top IT officials in the country. That said, posting it on a Friday night Saturday morning, as opposed to a response from the President during his Friday news conference, buried* diminished the impact of the news and muted its political impact.

4) Most American citizens oppose government involvement in blocking access to content online, particularly when the word “censor” is accurately applied. When asked if ISPs, social media sites and search engines should block access — as they would under SOPA — only a third of Americans agree.

The White House stated that “we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”

It will be up to the American people to hold them accountable for the commitment.

Update: Here’s Erik Cain, writing at Forbes on the White House response on SOPA:

This pretty clearly pits the Obama Administration against SOPA/PIPA. It also calls for more open and honest discussion about these bills and the problems they seek to address. Since there has been almost no discussion or debate until very recently on the legislation in question, this is a very welcome development.

I admit that while I’m pretty glad to see the administration come out with this sort of in-depth statement on the matter, I have a hard time trusting the president on these issues. His veto pen notably did not come out to quash the NDAA – a bill he vowed at one point to not let past his desk.

Then again, internet regulations may have wide, bipartisan support but still nowhere near the support that a defense funding bill has. Obama may have seen a political fight he couldn’t win, read the writing on the wall, and backed off of the NDAA rather than suffer a blow right before an election. The same does not apply to SOPA/PIPA.

So an executive veto on these bills seems much more likely, though at this point – with various congressmen starting to speak out, lots of companies threatening blackouts of their websites – including Wikipedia and Reddit – we may see the momentum behind these bills grind to a halt. The White House statement on the matter will only help push the conversation in congress. That’s a good thing.

Here’s Matt Yglesias, who writes at Slate that the Obama administration came out against SOPA and PIPA:

It increasingly looks like the SOPA/Protect IP fights are turning into an example of how the political system sometimes does work correctly after all. The con forces on these bills initially looked numerically overwhelmed in congress and hugely outspent. But opponents really mobilized vocally, got people and institutions who don’t normally focus on politics to write about this, and perhaps most important of all demonstrated that more people genuinely cared about this issue than most members of congress initially realized. Now the momentum has slowed incredibly and the White House technology policy team has come out against these bills.

To look a gift horse in the mouth for a second, however, I note that the White House statement does contain a “reasonable” to-be-sure line stating that “online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.”

Greg Sandoval and Declan McCullagh for CNET: DNS provision pulled from SOPA, victory for opponents:

Without the DNS provision, SOPA now looks a great deal more like the OPEN Act, a bill introduced by Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.), which was designed to be an alternative to SOPA. A watered-down SOPA means Smith improves his chances of getting the bill through Congress but at this point, nothing is assured.

Late today came word that six Republican senators have asked Majority Leader Harry Reid to postpone a vote on Pro IP, also known as PIPA. The senators wrote: “Prior to committee action, some members expressed substantive concerns about the bill, and there was a commitment to resolve them prior to floor consideration.”

Leahy issued a statement which appears to be a reply to the request by those senators. He argued that the PIPA vote should go ahead as planned.

“Saying no to debating the [Pro IP Act] hurts the economy,” Leahy wrote. “It says no to the American workers whose livelihoods depend on intellectual property-reliant businesses. And it says yes to the criminals hiding overseas stealing American intellectual property…all Senators should agree that this is a debate we must have…and should support cloture on the motion to proceed on January 24.”

It sounds as if Leahy is trying to keep some of the bill’s supporters from bolting. There’s little question now that some SOPA and PIPA backers in Congress are in retreat and seeking some kind of compromise in the face of significant opposition.

Cory Doctorow at BoingBoing: Lamar Smith and Patrick Leahy blink, pull DNS-blocking out of PIPA and SOPA

After repeatedly insisting that establishing a national censoring firewall with DNS-blocking was critical to the Stop Online Piracy Act, the bill’s sponsor (and chair of the House Judicial Committee) Rep Lamar Smith has blinked. He’s agreed to cut DNS-blocking from the bill, in the face of a threat from rival Rep Darrell Issa, whose House Oversight and Government Reform Committee was preparing to hear expert testimony on the harm that this provision would do to national security and the Internet’s robustness against fraud and worse.

Even without its DNS provisions, SOPA remains terminally flawed, creating a regime that would be terminally hostile to any site that contains links and any site that allows the public to post comments on it. But attention has shifted to PIPA, the Senate version of the bill, which is nearly as bad, and which is rocketing towards an imminent vote.

Timothy Lee at ArsTechnica: Obama administration joins the ranks of SOPA skeptics:

Combine all those concerns, and the statement is a fairly sweeping condemnation of SOPA and PIPA in their current form. Espinel and her colleagues appear to have left enough wiggle room in the statement to allow the president to sign a future version of the bill that addresses some, but not all, of the critics’ concerns. But the bill’s sponsors are now going to have to work hard to satisfy critics and build a consensus in favor of passage.

Tim O’Reilly at Google+ on the White House response to the epetition on SOPA and PIPA:

I found myself profoundly disturbed by something that seems to me to go to the root of the problem in Washington: the failure to correctly diagnose the problem we are trying to solve, but instead to accept, seemingly uncritically, the claims of various interest groups. The offending paragraph is as follows:

“Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders.”

In the entire discussion, I’ve seen no discussion of credible evidence of this economic harm. There’s no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?

In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

History shows us, again and again, that frontiers are lawless places, but that as they get richer and more settled, they join in the rule of law. American publishing, now the largest publishing industry in the world, began with piracy. (I have a post coming on that subject on Monday.)

Congress (and the White House) need to spend time thinking hard about how best to grow our economy – and that means being careful not to close off the frontier, or to harm those trying to settle it, in order to protect those who want to remain safe at home. British publishers could have come to America in the 19th century; they chose not to, and as a result, we grew our own indigenous publishing industry, which relied at first, in no small part, on pirating British and European works.

If the goal is really to support jobs and the American economy, internet “protectionism” is not the way to do it.

*The White House emailed me later in the morning to point out that the epetition response was posted on Saturday morning.

As SOPA comes to a vote, O.E.C.D. calls on members to defend Internet freedom

On Wednesday, the Organization for Economic Cooperation and Development called on its members to defend Internet freedoms. “It’s really a milestone in terms of making a statement about openness,” said Karen Kornbluh, the U.S. ambassador to the O.E.C.D., quoted by Eric Pfanner in the New York Times. “You can’t really get the innovation you need in terms of creating jobs unless we work together to protect the openness of the Internet.”

China and Russia come under some scrutiny for recent actions regarding their citizens and the Internet. For instance, distributed denial of service attacks were recently used in Russia in attempts to squelch online speech after the elections.

The United States of America, however, also has a serious Internet freedom issue on its collective hands, as people following the progress of the ‘Stop Online Piracy Act’ (SOPA) through Congress know. If you’re unclear about the issues raised by the Stop Online Piracy Act, read my feature, “Congress considers anti-piracy bills that could cripple Internet industries,” or watch the video below, from the Cato Institute:

Cato Institute research fellow Sanchez asserts “that internet censorship won’t effectively address the problem of piracy and will threaten innovation and the liberties of Americans by engaging in unconstitutional prior restraint.” The video was produced by Caleb Brown, Austin Bragg and Julian Sanchez.

The key O.E.C.D. recommendation relevant to SOPA is the one that urges policy makers to “limit Internet intermediary liability.” If you don’t know what intermediary liability is, watch White House deputy CTO for Internet policy Danny Weitzner explain it at Radar. As Pfanner observed, President Barack Obama has yet to take a public position on SOPA or the PROTECT IP Act.

The House Judiciary Committee addressed some of the concerns raised about SOPA in the manager’s amendment of SOPA. Markup of the bill is scheduled for a hearing this Thursday morning. While some of the most controversial elements in the original bill have been edited (removal of a private right of actor, narrowed range of targets) the use of DNS and filtering as enforcement mechanisms remain. The EFF is not satisfied, stating that the manager’s amendment is “still a disaster.” <Public Knowledge and the Center for Democracy and Technology welcomes the revisions but retained serious concerns.

As Google anti-spam lead Matt Cutts recently pointed out, “some guy” also recently pointed out that SOPA is unconstitutional. The fellow in question happens to be Lawrence Tribe, a professor of constitutional law at Harvard Law School, who released his opinion on SOPA online. “Under standard First Amendment scrutiny, both PROTECT IP & SOPA are clearly unconstitutional,” concurred Marvin Ammori.

What happens next is less clear. It’s unlikely that Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, would have brought SOPA up for markup unless he thought he had the votes to pass it on to the full House of Representatives.

The SOPA “manager’s amendment retains the fundamental flaws of its predecessor,” said Rep. Darrell Issa, chairman of the House Oversight and Government Reform Committee. <release. Issa told CNET that SOPA won’t be approved unless fixed.

Former Internet entrepreneur Rep. Jared Polis (D-CO) went further, telling CNET that SOPA will “destroy the Internet as we know it.” According to Polis, his staffers haven’t received a single call asking them to pass SOPA, but had “hundreds against” it.”

Many prominent members of the Internet community have come out against SOPA. Thousands of people have added their faces to IWorkForTheInternet.org this week. Notably, earlier this week, Jimmy Wales asked Wikipedia if it should “strike” over SOPA. As of Monday night, about 75% of those responding to his straw poll supported the action. Wikimedia general counsel Geoff Brigham advised the Wikipedia community that SOPA will hurt the free Web and Wikipedia. As of today, we still don’t know whether the world’s biggest encyclopedia will protest tomorrow.

Will any of it make a difference to the eventual legislation or its passage? Stay tuned.

Reps. Issa and Lofgren warn that SOPA is “a bipartisan attempt to regulate the Internet”

Last week, House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) and Representative Zoe Lofgren sent out a “Dear Colleague” letter to the other members of the House of Representatives entitled “A bipartisan attempt to regulate the Internet?”

I’ve posted the letter below in its entirety, adding a link to the bill page for the “Stop Online Piracy Act” (SOPA) (H.R. 3261) on Thomas.gov and a PopVox widget after it, and embedded my interview with U.S. Senator Ron Wyden about the PROTECT IP Act, the companion bill to SOPA in the Senate.

From: The Honorable Zoe Lofgren
Sent By: Ryan.Clough@mail.house.gov
Date: 11/8/2011

Dear Colleague:

The Judiciary Committee is close to consideration of H.R. 3261, the Stop Online Piracy Act. We write to call your attention to a recent article about the bill in the Los Angeles Times, entitled, “A bipartisan attempt to regulate the Internet?” (available at http://opinion.latimes.com/opinionla/2011/10/technology-a-bipartisan-attempt-to-regulate-the-internet.html).

We agree with the goal of fighting online copyright infringement, and would support narrowly targeted legislation that does not ensnare legitimate websites. We also believe that a consensus on the issue between the content and technology industries is achievable. As the attached article makes clear, H.R. 3261 unfortunately does not follow a consensus-based approach. It would give the government sweeping new powers to order Internet Service Providers to implement various filtering technologies on their networks. It would also create new forms of private legal action against websites—cutting them off from payment and advertising providers by default, without any court review, upon a complaint from any copyright owner, even one whose work is not necessarily being infringed.

Online innovation and commerce were responsible for 15 percent of U.S. GDP growth from 2004 to 2009, according to the McKinsey Global Institute. Before we impose a sprawling new regulatory regime on the Internet, we must carefully consider the risks that it could pose for this vital engine of our economy.

Sincerely,

Zoe Lofgren
Member of Congress

Darrell Issa
Member of Congress

https://www.popvox.com/widgets/js/bill.js?bill=112/hr3261&title=1

Open government data gathers bipartisan support in Washington

Two weeks ago at the Strata Conference in NYC, I donned a headset, grabbed a tablet worth of questions and headed to the podium to talk with the chairman of the U.S. House Committee on Oversight and Government Reform about data and open government.

Congressman Darrell Issa (R-CA) joined me via remote webcast from chambers in Washington, D.C. Our crack video team is working on an improved version of this video in which you’ll see my side of the broadcast, along with a boost in audio. Until then, the video that the House Oversight digital team uploaded to YouTube will suffice — and I don’t want to wait to share this story any longer in the meantime, particularly as interest builds behind the principle subject of our conversation, a proposed bill to standardize financial reporting data standards in the federal government and create single database for financial spending.

Daniel Schuman listened in and summarized our conversation on open government data over at the Sunlight Foundation’s blog:

The Chairman focused his remarks on the DATA Act, the bipartisan legislation he introduced that would transform how government tracks federal spending and identifies waste, fraud, and abuse.

He emphasized the importance of making government data available online in real time so that innovative minds can immediately make use the information to build their own businesses. Business, in turn, would help the government identify program mismanagement and data quality problems. The Chairman specifically singled out Vice President Biden as a supporter of efforts to find a common solution to make data available in a systematic way.

…Chairman Issa explained that the private sector must step up as advocates for greater openness because they will benefit from building and using the tools made possible by greater transparency. He added when government drives down the cost of obtaining information, private individuals will derive value from the analysis of data, not its ownership.

The cost of good data

Since our conversation, the Congressional Budget Office has estimated that the DATA Act would cost the government $575 million to implement over 5 years, as reported by FierceGovernmentIT:

“In a cost estimate dated Sept. 16, the CBO attributes $325 million of the estimated total to requirements in the bill regarding the collecting and reporting of financial information. The DATA Act would require federal agencies, and most government contractors and grant award winners to adopt XBRL as a financial data reporting mechanism.”

Left unsaid in the CBO estimate is what the impact of this kind of transparency on the federal government’s finances might be, in terms of savings. House Oversight staff have estimated annual savings from standards and centralized spending database that would more than offset that outlay, including:

  • $41 million in funds recovered from questionable recipients
  • $63 million in funds withheld from questionable recipients
  • $5 billion in savings recommended by inspectors general
  • unknown savings resulting from better internal spending control and better oversight by Congressional appropriators.

The DATA Act, which would expand the role of the Recovery Accountability and Transparency Board to track all federal spending and make all of the information available to the public, has bipartisan support in the Senate from Senator Mark Warner (D-VA), who has introduced a companion bill there.

As NextGov reported yesterday, efforts to require government-wide spending reports have advanced on the Hill, while President Obama has begun the process of establishing a similar board by executive order.

You can read more letters of support that extend from well beyond an Open Government Coalition online over at Scribd, including:

Open government as a bipartisan issue

Given the White House’s embrace of the mantle of open government on President’s first day in office, the executive branch has gathered a lot of the press, attention, praise, scrutiny and criticism in this area.

That looks to be changing, and for the better. As Clay Johnson pointed out at the beginning of 2011, any competition between the White House and Congress on open government is likely to be a win for the American people.

Jim Harper, director of information policy studies at the Cato Foundation and webmaster of WashingtonWatch.com, wrote then that the GOP can eclipse Obama on transparency. “House Republicans can quickly outshine Obama and the Democratic Senate,” he opined. “It all depends on how they implement the watch phrase of their amendment package: “publicly available in electronic form.”

The GOP House leadership must make sure that this translates into real-time posting of bills, amendments and steps in the legislative process, in formats the Internet can work with. It’s not about documents anymore. It’s about data. Today’s Internet needs the data in these documents.

There are no technical impediments to a fully transparent Congress. Computers can handle this. The challenges, however, are institutional and practical.”

Johnson identified the moment in history as an important inflection point, and one that, if the White House rose to the challenge, could legitimately be seen as an open government win for the American people and a smarter, more accountable government.

The White House may hold the considerable advantages of the bully pulpit and the largest followings of any federal entity or politician on Twitter, for now, but that has to be balanced against the considerable new media prowess that the GOP has built up over their Democratic counterparts in Congress, where Republicans hold an edge on social media.

While some projects or choices continue to cast questions on commitment in the rank and file to open government principles, with the GOP bending new House rules, there’s progress to report. The leadership of the House of Representatives has supported the creation of open, online video archives, like House.Resource.org. The House revamped its floor feed recently, adding live XML. And House leadership has recently venerated the role of technology in making Congress more transparent, engaged and accountable.

Rep. Issa, in particularly, appears to have taken on open government as a cause and, for the moment, its rhetoric. He even tweets using the #opengov hashtag. When it comes to the legislature, “the American people have a right to all the data from Congress. They have a right,” he said at a recent forum on Congressional transparency, as reported by Diana Lopez.

Government secrecy and transparency are, in theory, non-partisan issues. In practice, they are often used a political bludgeons against an opposing party, particularly by a partisan minority, and then discarded once power is gained. For government transparency to outlast a given White House or Congress, laws and regulatory changes have to happen.

Open government has to be “baked in” to culture, practices, regulations, technology, business practices and public expectations. Needless to say, that’s going to take a while, but it looks like both the administration and some members of Congress are willing to keep trying.

As these efforts go forward, it will be up to the media, businesses, nonprofits, watchdogs and, of course, citizens to hold them accountable for actions taken, not just rhetoric.

What’s the future of the DATA Act?

I’m writing a feature article about the bill, this conversation, context for government performance data and whether open government and transparency will have any legs in the upcoming presidential campaign.

If you have any questions that are unanswered after watching the conversation, comments about the use of XBRL or perspective on the proposed law’s future in Congress, please ring in in the comments or find me at alex[at]oreilly.com.

How should Regulations.gov be using social media?

The Internet offers new opportunities to involve the public in regulatory rulemaking, including industry, media, nonprofits and citizens. A new social layer for the Web has shifted what’s possible in open government forward again, both hosting and enabling conversations. Below, one of those conversations is captured using the social media curation tool, Storify.

http://storify.com/digiphile/how-should-regulationsgov-be-using-social-media.js[View the story “How should Regulations.gov be using social media?” on Storify]

Obama administration releases open government status report

The Obama administration has released a status report on open government.

The report, which I’ve embedded below, was released through a blog post at Whitehouse.gov by Steven Croley, special assistant and senior counsel to the President:

President Obama has made open government a high priority. Greater openness renders our government more efficient and effective. It strengthens our democracy. It improves our citizens’ lives.

To these ends, the Administration has taken many substantial steps to promote increased participation and collaboration in government, and to make government more transparent. For example, federal agencies have increased transparency through redoubled efforts to disclose more information under the Freedom of Information Act. They have implemented ambitious Open Government Plans, and made voluminous data newly available to the public. The Administration has also made spending information more transparent, and taken steps to disclose previously sensitive government information.

Of course, creating a more open government requires sustained effort. How best to harness new technologies in the service of open government, to strike the proper balance between transparency and the protection of national security and personal privacy, to change agency culture so that openness becomes the new normal–such issues require long-term commitment.

But it is useful to take stock of the Administration’s accomplishments along the way. Accordingly, today the White House is releasing The Obama Administration’s Commitment to Open Government: A Status Report (pdf). This status report highlights the breadth of the Administration’s commitment to open government, documents the substantial progress made on many of the Administration’s open government initiatives, and anticipates continued progress. Although not an exhaustive compilation of our open government efforts, thi provides a compelling picture of how far the Administration has already come towards forging a more open government.

Open Government Status Report

View more documents from White House

As Nick Judd points out in his report at techPresident, the report comes a week before President Obama’s open government speech at the launch of the international Open Government Partnership in New York City.

The 34-page report is a highlight reel of everything the administration has accomplished on open government, claiming victories in increased agency responsiveness to Freedom of Information Act requests, the release of government data online, and better communication using web tools. It comes as the Obama administration prepares to make good on a challenge the president himself issued at last year’s convening of the U.N. General Assembly to return there this month with concrete steps to make governments more open, participatory and collaborative.

“We are pleased to see the Administration undertaking this kind of review because it gives us an all opportunity to reflect on what goals have been met and what challenges we agree remain,” wrote Patrice McDermott, director of Open the Government, in a post at OpenTheGovernment.org. “We hope our advocacy and the Administration’s actions will result in an even more impressive report in the future.”

OpenTheGovernment recently released its own “Progress Report on Openness and Secrecy in the Obama Administration” that was somewhat less glowing, balancing both promising and “troubling directions” for open government.

Stay tuned for more on what further commitments the White House will make in its upcoming U.S. National Plan and the commitments of other countries. For further context, read these notes from the White House open government partnership consultation and the links embedded in tracking the progress of the Open Government Directive.

http://www.whitehouse.gov/sites/all/modules/swftools/shared/flash_media_player/player5x2.swf

Notes from the third White House Open Government Partnership consultation

In July 2011, the State Department hosted an historic gathering in Washington to announce an Open Government Partnership with Brazil and six other nations. For background on the initiative, read this digest on Open Government Partnership analysis for context.

This new new open government partnership could drive U.S. commitments, according to OMB Watch.

What those commitments will be is still unclear. Given that they’re due by September’s Open Government Summit at the United Nations in New York City, the timeline for drafting them is quite limited.

Last week, when the White House asked for ideas on the National Plan for open government, the community learned a bit more about what’s on the table: improving public services and increasing public integrity.

Clay Johnson has since offered the White House a deep set of recommendations for open government in response to the three questions it posed, including better ways to use open data, social media, improving regulations, public comment, and the developer community better. If you’re interested in open government, it’s a must-read.

Those are not the limit of potential commitments on the table, at least as evidenced by what we know about the series of three consultations with open government stakeholders in Washington that the White House Office of Information and Regulatory Affairs held this July, on the 22nd, 25th and 29th. These consultations were not livestreamed or otherwise recorded, however, nor have OIRA’s notes been released to the public yet. That said, we have at least two accounts of what happened in July, from:

I attended the July 29th consultation and, while I did not record video or audio, can share the following written notes.

Attendees

As with the previous meetings, OIRA administrator Cass Sunstein led the discussion. White House OSTP deputy CTO for public sector innovation Chris Vein was also there, along with half a dozen OIRA staff and a representative of the National Security Archive.

Seated around the table were representatives from America Speaks, OMB Watch, the Center for Technology in Government at the University of Albany, Sunshine in Government. University of Pennsylvania professor Cary Coglionese and a board member from the International Association for Public Participation, Leanne Nurse, dialed into a conference speaker phone line.

Past meetings included representatives from the Revenue Watch Institute, Code for America, Harvard’s Kennedy School of Government, Open Plans, Civic Commons, the Sunlight Foundation, Citizens for Responsibility and Ethics in Washington and the Project for Government Oversight, in addition to Open the Government and NCDD.

Open Government Consultation

Sunstein started the meeting by offering high level context for the OGP and thanks to the organizations around the table.

When the OGP was devised, he said, it was done with background experience from the Open Government Directive that came President Barack Obama and the White House Office of Management and Budget.

Many of your organizations were “indispensable” during that process, Sunstein said, and even though what happened with the open government directive “wasn’t perfect,” there has been “tremendous progress.” He thought from the beginning, with regard to the OMB open government project, that it would be a work in progress, with plans scrutinized and improved over time.

Sunstein laid out the reason for the consultation: the White House has national action plan due in September, with an event at the UN as the president promised. The White House wants the national action plan to be as good as possible, “improving on what we’ve got so far as we can.” Reflecting his comments at the previous two consultations, Sunstein said that one way to think of the meeting is generating ideas through three stages, given the temporal and feasibility constraints posed by the short deadline for UN recommendations. He observed that where would be opportunities moving forward in the medium term, over a 3-5 month time period to do more.

Katherine McFate, the executive director of OMB Watch, asked a question about the parameters for the consultation, noting that if you go back and look at the open government partnership, there are five different challenges for countries. If you only have to pick one or two, she suggested, improving public services is one, and may be improving public integrity is another. Increasing accountability, likely to be three. (Given the recent White House blog post, OIRA may have taken that suggestion.)

In response, Sunstein replied that there are surely things that have budgetary repercussions, which you then have to answer for, although in open government, sometimes it’s possible to improve public services without stretching the budget.

Theresa Pardo, director of the CTG at Albany, after thanking OIRA for the opportunity to speak and to listen, focused on the some of the issues that have arisen during implementation of the open government directive, including the role of citizen engagement. One tension is how to think about citizen participation, versus accountability imperatives.

One of the things that we hear quite regularly when we talk to practitioners at federal, local, and state level, along with academics, is a lot of confusion about concepts underlying open government directive. There’s pressure towards clarity, and still a lot of ambiguity. One of the ways to push through in creating that clarity, she suggested, would be to focus a bit more on the conversation, on figuring out what the problems that citizens are seeking open government to solve. Pardo said that in their experience, in various jurisdictions in US and outside of the US, it’s a challenge to connect what’s happening in government agencies with what citizens are talking about in public. Over the long term, the opportunity for open government, she explained, is to move towards deeper engagement with citizens themselves about what problems are they experiencing.

Professor Coglianese, speaking over the phone, agreed with Pardo and McFate. He also suggested that the White House clearly take stock of where open government is currently. We’re seeing great things, in taking stock of regulations, he said. It would make sense to something similar with taking stock of public participation now, defining a better baseline of where to assess what kinds of reform are making changes.

The point, about defining a baseline for public participation, was taken up and emphasized by many of those invited to the July 29 consultation. One of our major tools is the public participation spectrum, said Douglas Sarno of IAP2 USA. No systematic approach to what we’re trying to do or what’s been achieved has been defined by the White House, he said, and no way of qualifying bonafide public participation versus hackneyed participation defined. There are good challenges in finding metrics.

Sunstein agreed that the regulatory process requires significant public participation. This week, the Regulations.gov team acknowledged the need to do more in that regard.

In response, Pardo cited a number of studies in which communications scholars and computer scientists are using machine language processing to analyze online rulemaking to see if it results in changing in deliberation or positive social interaction. Such studies can be expensive but useful. Part of the issue in integrated such work, however, is getting real movement in processes in partnership with academics, she said.

Pardo focused further upon the role of citizen engagement, both around rulemaking and the large context of open government. Nowhere, until just recently, she said, do we teach our public managers about how to look, engage, and use citizen participation tools. “There’s a capability gap at all levels of government. How do public managers in local governments and cities, think about their jobs in different ways?”

The National Association of State CIOs and others are looking at building capability to understand how to use data and engagement tools better, said Pardo, but across the board there’s lack of ability in these core competencies. Maybe building ability as with cybersecurity skills would make sense, she suggested, including professional standards for citizen participation.

Coglianese similary focused more on baseline assessments for public participation. There are some political scientists who have tried to assess the actual impact of public comment and proposed rulemaking, he said. In terms of what to look to as baseline, what is it you want to accomplish with this national action plan? Is the goal to increase public participation? What is the level right now? We don’t have a way of saying what the volume of interaction is across the federal government, he asserted.

We do know, however, that rulemaking tends to be more something that organizations participated in more than individual citizens, Coglionese said, citing a recent article on public participation that he’d authored law journal. “We need a baseline of who’s participating and at what level,” he said. “Is the goal of participation to increase the quality of public decision making? That’s hard to assess. To enhance public virtue? That’s much harder to assess. Until it’s clear exactly what it is you would want to do, you can’t answer these questions.”

David Stern, director on online engagement at America Speaks, validated Coglionese’s words, observing that his organization had recently looked at all open government plans by agencies and came to the same conclusion. There’s a lack of consistency in metrics used to evaluate projects, said Stern, and no standards about what defines good participation. Number of people, diversity, number of instances policy influenced? Standards and best practices, in this area, would be helpful coming from White House and OMB. Every open government project contains response to the most popular proposals, he said, which means that every public engagement initiative has a public engagement component.

Rick Blum of Sunshine in Government raised another issue: FOIA exemptions, including agencies proposing them independently. The Department of Defense is overclassifying, said Blum, and it’s very hard to track what’s happening. The Department of Justice has put up a FOIA dashboard but it’s “plagued with tech glitches and bad data,” he said. This has become a public debate about secrecy or disclosure, with some half a billion dollars being spent annually fulfilling FOIA requests, said Blum. There’s also concern about the impact of the recent Supreme Court decision in Milner vs the Navy.

On my part, I offered feedback that I’d collected from the broader open government community ahead of time and over the previous year.

First, the White House has not explicitly separated open government innovation, in terms of open data about the business of government, from “good government” initiatives that transparency advocates expect and demand, in terms of accountability to the people. Misset expectations around the goals the White House has set out have created widespread dissatisfaction and harsh criticisms of an administration that promised to be “most transparent ever.” The open government initiative in the province of British Columbia offers a potential model for the White House to consider, in terms of this separation.

Second, as the federal government moves forward with its ongoing review of .gov websites, there are opportunities to work with civil society and civic developers to co-create better e-services.

Third, opportunities exist for the White House to partner with entrepreneurs, media or nonprofits that are making government data open, useful and searchable. For instance, BrightScope has made financial advisor data from the SEC and FINRA available to the public. The work of Code for America and others on farmers market open data is another example.

Finally, there continue to be serious issues raised by developers about the quality of open government data on Data.gov. In general, public servants continue to release PDFs, as opposed to machine-readable structured data, and cite the language in the Open Government Directive for support. If government wishes developers and businesses to use its data for accountability, civic utility or economic value, then releasing data in the open formats that these communities find most useful makes logical sense.

Pardo took up the issues raised with good government versus open innovation, noting that the two aren’t necessarily against each other. The idea of high value data wasn’t well defined, she said. For instance, the calendars of public officials are nothing more than a dataset.

Sunstein asked after the data issues and the one of his deputies specifically asked about the language in the OGD. He brought up the work that the federal government has done on regulations.gov – which was a persistent focus from the OIRA administrator – and asked whether it was good enough, and over what time limit? And for whom?

The general answer there was clear enough: “we the people.”

Coglianese offered more feedback on regulations.gov: it’s not enough. There are data fields are not filled in, missing information, and things remain incomprehensible, he said. “Imagine how it is for many others coming for first time?” Coglianese endorsed the recommendations of ADA blue ribbon commission for a dedicated overseer of data quality, although such a role would require congressional authorization.

There are some really important opportunities to leverage data in regulations.gov, he emphasized. Leverage that data to extract it automatically, display the data on websites. For instance, many members of congress have a button on their websites forlegislation they’re sponsoring, which then takes visitors to data automatically etxtracted from Thomas.gov. Imagine a similar system for agencies and regulators, he suggested, or consider the EPA, which is trying to display every rule that the agency is working on., which is being developed in addition to regulations.gov.

Agencies right now are building websites around current uses, said Coglionese. That makes a lot of senses, and it’s what one would hope, but doesn’t go to the “separate question of who do they want their users to be.” He criticized the design of the new FCC.gov, although I pointed out that the process that preceded the FCC relaunch was focused on the most common purposes of the site’ visitors.

What was left unsaid in these open government partnership consultations? A great deal, due to the length of time allowed. The voices that were heard around this table were also those of advocates, policy, experts, academics, and technologists: not citizens, and by and large not those of the media, whose function in representative democracies been to hold government accountable on behalf of the public.

As the White House considers its commitments in advance of the September meeting at the United Nations, the people will have a window of opportunity to tell their elected officials what open government means to them and how they woud like their federal government to be more transparent, participatory or collaborative.

If you have feedback on any of those accounts, send it to opengov@omb.gov.

UN: Disconnecting Internet users is a breach of human rights [REPORT]

As the role of the Internet as a platform for collective actions grows, access to the rest of wired humanity becomes more important. Today, United Nations special rapporteur Frank La Rue released a report on freedom of expression and the Internet that described cutting off Internet access as a breach of human rights. The report, which was presented to the Human Rights Council in Geneva, is an important data point as governments around the globe decide how to legislate, regulate or moderate the disruptive impact of the Internet.

The UN report comes at an important time. As Mathew Ingram wrote at GigaOm, reporting on the recently released UNESCO report on freedom of expression online, governments are still trying to kill, replace or undo the Internet.

“The report provides initial guidance for countries that are grappling with how to address complex Internet policy challenges while upholding their obligations to human rights,” said Leslie Harris, president and CEO of the Center for Democracy and Technology, in a statement released to the media.

“As Rapporteur La Rue affirms, the Internet’s unique ability to provide ample space for individual free expression can lead to the strengthening of other human rights, including political, economic and social rights,” said Cynthia Wong, director of the Center for Democracy and Technology’s Project on Global Internet Freedom. “In order for these rights to be realized, governments, civil society and industry must all continue to build on the work begun by the Special Rapporteur.”

Both reports and the recent eg8 Summit shows online innovation and freedom of expression still need strong defenders. “The primary reason we need to support the Net is because it is a foundational part of how we have our democracy,” said Yochai Benkler, co-director of the Berkman Center for Internet and Society, speaking in Paris.

What’s at stake today has been what’s at stake for more than 15 years, said Benkler: The possibility that a coalition of forces who are afraid of the internet will shut it down.”There is still a very powerful counter argument, one that says both for innovation and for freedom, we need an open Net.”

If an open Internet is the basis for democracy flourishing around the world, billions of people will be counting upon our leaders to keep it open and accessible.

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and exp…

[Hat Tip: TorrentFreak and Mathew Ingram]