A DISCUSSION OF LAW AND JOURNALISM

Interview with an Internet Superhero

By Ryan Morrison

SOPA. PIPA. ACTA. The TPP. Bills that involve governments around the world trying to put a stranglehold on the Internet.

Core issues of freedom are involved. And as comedian John Oliver put it on his podcast, “It’s a shame this stuff is so important because it’s really damn boring.”

Luckily, some people actually find “this stuff” fascinating, and are working from the political sidelines, doing everything in their power to speak up for the rest of us when it comes to the Internet. The Electronic Frontier Foundation (EFF) is that group, and of that group, one man stands apart from the rest. We mean that, of course, because he was willing to sit down and speak with us.

Trevor Timm is a 2011 NYLS alum, and he’s done us proud.  He graduated near the top of his class, passed the bar, and now serves as an advocate-journalist in the San Francisco Office of the EFF. He also wrote for this very blog, and now he’s back to catch up with us.  We spoke over Skype on the evening of February 3, and again on February 18.

 

Thank you for taking some time to talk to me. I follow you on Twitter and read your articles, but I’m still amazed at how you’ve become such a respected and well known writer. How did you make the leap from new law grad to working for the EFF?

Thanks for inviting me. I got heavily involved with Legal as She is Spoke and the Program in Law & Journalism with New York Law School at the beginning of my second year. Professor Zierler helped me get a job with former New York Times general counsel James Goodale where I worked on free speech issues for more than two years. My last year, I also had a terrific internship with the General Counsel of the New Yorker. And at school, I worked as a research assistant for Professor Nadine Strossen, former President of the ACLU.  I was always pretty good with time management!

On top of all that, I was on Twitter night and day trying to make a name for myself by analyzing free speech issues in the news. I was able to get a strong following on there from my writings on Wikileaks, and this helped seal the deal when I applied a job at the EFF.

Here I am, and I love it. I get to do what I did for LASIS as a career, on subjects I enjoy writing about and even affect the public discourse.   It couldn’t be more satisfying.

Yes, I know from reading your tweets and articles that you care deeply about what you do.  And lately, you’ve been writing a lot about SOPA and PIPA. Thanks to advocates like yourself, the two bills have now been tabled indefinitely. What next?  

Well the MPAA and the RIAA have gotten their way with Congress for a long time. There’s always a chance these bills will be merged under a different name, and added as an amendment to a completely unrelated bill.

But unlike most bills being discussed these days, this isn’t a partisan issue. Representatives from both sides of the aisle lined up for and against the bills. Senator Ron Wyden [D-Oregon] and Congressman Darrell Issa [R-California] deserve particular praise for raising the alarm on these bills when no one was paying attention.

On the other hand, people like Senator Al Franken [D-Minnesota] were disappointing.  When you look at how strongly he had defended online free speech in the past, it’s odd that he favored bills antithetical to it flourishing. But again, a lot of their campaign funds come from Hollywood, and Hollywood wants SOPA.

Then if this just postponed the inevitable, how effective was the blackout?

We had high hopes for the blackout, but even we here at the EFF were surprised at how effective the blackout was. After less than 24 hours, dozens of congressmen who hadn’t weighed in now opposed the bill. Some who had been pro even flipped sides. Another 24 hours went by and both Senator Harry Reid [D-Nevada] and Congressman Lamar Smith [R-Texas] tabled the bills in the House and Senate indefinitely.  Just days before, they had both said that passing these bills was one of their highest priorities for 2012.

The average web user woke Congress up. Congress will think twice about passing a bill that affects the Internet, without actually consulting its users. Even though there is the real possibility they will try to slip SOPA like legislation into another bill, our representatives know we’re all watching.

SOPA and PIPA were grouped together.  Was this fair or did each bill offer its own distinct problems?

When SOPA was introduced to the House, it was much worse than PIPA, which was already really bad. But in the end they wound up looking pretty much the same.

It’s possible the House was strategic in crafting SOPA so badly, so members could then pretend to be reasonable, compromise, and say, “Fine, we’ll agree on PIPA then.” There were provisions in the original version of SOPA that gave corporations the ability to shut down websites without going to court. All they had to do was send notice to a site’s ad payment processor — not even the site itself! — and it would be game over. That site could have had millions of pages or videos, and if just one was infringing, the whole site could have been cut off, just by an allegation by a rights holder.

So if one video on YouTube (which receives 60 hours of video every minute) was accused of infringement, a rights holder could shut down the whole site’s advertising network with only one notice. Congress took that part out after a huge outcry, but the final result was nearly as bad. The Act still offered an ability to cut off payment processors, to delist domains from search engines, and DNS filtering, not to mention immunity for ISPs (any organization that provides access to the Internet), which would allow them to block whoever they wanted with no judicial oversight. All of these things were strongly opposed by the online community and the EFF.

I’m going to play devil’s advocate for a moment. What about the online piracy epidemic?  Do you believe SOPA and PIPA could have helped stopped it?  Or for every Piratebay shutdown will five more pop up?

The tools used in these bills are still crude. They allow for the blocking of a DNS or the delisting from a search engine, but the much more tech savvy pirates will always just switch domain names and get listed some other way. These bills never get at the actual pirating website and the IP address remains untouched. So they “block” one and it appears somewhere else. It’s a game of whack-a-mole.

The only people who will actually feel any pain are the ordinary, innocent Internet users. They’re the ones who will get hurt by it because they’re not as tech savvy. Your blog or your personal photos or videos could easily be taken down in a wave of sites that are accused of copyright infringement.

That’s also why the immunity provisions in these Acts are so terrible. Look at the Mooo.com example. The FBI thought it was seizing a domain engaged in copyright infringement and instead wound up with 84,000 domains that had nothing to do with what they were after. Innocent people lost their sites, and some their livelihood, because of an FBI mistake, and this kind of “over-blocking” would be commonplace under a bill like SOPA or PIPA. The immunity provision means these people who are hurt by it have no recourse to sue anyone for damages. They’re just out of luck.

Understanding Google is still a corporation and corporations obviously (and rightfully so) care about profits, can we expect them to stay the defender of the little guy? Or will our goals not always intersect with these Internet giants?

Well, sometimes their ideals will intersect with what EFF believes to be the right course of action, other times they won’t. Many times with free speech issues, we agree. But other times with privacy issues, we don’t. For example, 49 of the top 50 websites (excluding only Wikipedia) use cookies (a file installed on your computer from a website) to track your movement online and see a lot of what you do, which they can then sell to advertisers. The top culprit of this is probably the last one you’d guess though, Dictionary.com. Another example is if you’re at a page that has a Facebook “like” button, not only will Facebook know if you click it…they’ll also know if you don’t. Merely visiting a site with a “like” button means Facebook knows you were there.

Wow, I actually had no idea about that.

Yeah, it’s surprising stuff sometimes.

But Google is good in other privacy areas, like requiring a warrant from law enforcement for the contents of emails, despite law enforcement’s contention that the law doesn’t require a warrant like it would with letters or phone calls. So it really depends on the individual issue.

Looking at the dramatic and effective shutdown of Megaupload, many are left confused about why the government even needed SOPA and PIPA in the first place. Would you mind explaining for our readers how Megaupload was brought down without these two bills?

There are a lot of laws on the books already, like the Digital Millennium Copyright Act, to take down infringing material. And the Megaupload takedown shows why SOPA and PIPA aren’t needed. The bills’ stated goal was to go after foreign sites, but Megaupload was incorporated in Hong Kong, its founder was a  Finnish and German citizen, and he was arrested in New Zealand. Megaupload shows how much power the government already has in this area.

 

In addition, Megaupload had millions of users that used the site for non-infringing material. So even if there was infringing material on that website, there were also innocent people with very legitimate purposes who had their rights violated. EFF is working on trying to make sure everyone with non-infringing material on Megaupload gets their files back

Does the huge success of the Internet-wide protest mean we can expect future political debates to be won or lost by the support of the online community? Or do you see the giants such as Wikipedia and Google staying out of most other political questions?

I think we have witnessed a new and great form of activism. The website Reddit has been a huge leader in these political movements and it’s a website that is, for the most part, run by its users. That’s amazing. Reddit users got Godaddy to reverse its support for SOPA; they got Congressman Paul Ryan [R-Wisconsin] to come out against the bill forcefully; they were the first site to say they’d blackout in protest. Their decision triggered the major players like Google and Wikipedia to join in. All of this, by the way, was done in an incredibly short amount of time. This showed Internet users that they could be part of the political process and that their voices were powerful.

The blackout was kind of the “nuclear option” for these sites. It had never been done before and it shouldn’t be abused or threatened to be used for every possible threat to Internet freedom; it would lose its effectiveness. It worked here because Wikipedia was able to say, “This is what we may very well look like if SOPA or PIPA pass.” Our hope is that this alerted people to the dangers new bills like this can pose. SOPA went from something no one had heard of to something everyone knew the name of in less than 24 hours. We’ve never seen anything like that in our history, and hopefully people now realize the power they hold and that they can make a real difference.

It’s definitely exciting. Also, congratulations on being the author of the single article Wikipedia linked to on the day of the blackout.

Thank you, and yes that was surreal. The White House said it was against any bill that would stifle free speech or hurt internet security, so my article was an attempt to try to box the administration in. But it also gave a simple explanation of all the parts of the bills that would affect common websites and ordinary users, so Wikipedia sent its users there if they wanted more information on its dangers. It ended up getting over 600,000 hits in two days.

Well, thank you very much for taking some time to go over all of this and answer my questions. Before you go, I’d be a fool to not ask you for any advice you might give to law students looking to follow in your footsteps.

 

The best advice I could give is simple: constantly read and constantly write. If you are regularly consuming news about your areas of interest then you will naturally become more knowledgeable than most people on any subject you choose. Once you feel like you’re an expert on an issue, then focus on it and write about it regularly. Being able to be knowledgeable and being able to explain it in a clear way can be tough and the only way to do it well is to practice. From there, people will take notice.

Finally, I know that last week you testified in front of the European Parliament on the sale of mass spy gear by American and European companies to authoritarian regimes. That’s really amazing! How did you get selected for that? And what was it like?

We have been working on ways to get these companies to refrain from selling this tech to dictators for a while now, and when the parliament invited EFF to speak, I got the nod. The technology is horrible: it lets governments read citizens’ emails, turn their phones into tracking devices, and a whole host of other dangerous features. There’s ample evidence that activists and journalists have been tortured because of it. But the hearing was encouraging. Probably 100-150 people attended, including many members of parliament, and many of the people I talked to after the hearings seemed to think there’s a workable way forward. Hopefully they will act soon. It gets worse all the time.

Thank you very much for taking some time to go over all of this and answer my questions. Keep on fighting the good fight!

 

 

 

 

 

 

 

 

 

 

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