Fighting for the Internet: Online Blackout Protests and Internet Legislation in the United States, 1996-2018

Nadine Irène Kozak

Abstract


Introduction

Unplanned internet blackouts can result from failure or overcapacity, or can occur following attacks on Internet service providers (ISPs), the Internet’s domain naming system, or specific websites. They can also result from improper Web server infrastructure configuration (PC Mag). However, Internet blackouts can also be planned and strategic. Governments have used blackouts for political reasons such as shutting down websites and social media to disrupt protest activities. Online service providers (OSPs) — websites, social media, and the organisations that run them — can also use coordinated outages as a form of protest and to raise awareness. Various groups in the United States (U.S.) have used blackouts to protest changes to Internet legislation. Not all contentious legislation, however, spurs a blackout protest.

Online blackout protests receive uneven academic treatment. While several scholars consider the successful 2012 Stop Online Piracy Act (SOPA) protests (Oz; Langford; Lev-Aretz; Logie; Benkler et al.; Shahshahani; Tufekci), there is less analysis of the blackout protests in relation to the Communications Decency Act (CDA) (Berman and Mulligan; Logie) and Cyber Intelligence Sharing and Protection Act (CISPA) (Lev-Aretz; Shahshahani). Scholars consider technological and design factors that lead to successful protest, specifically the Internet’s capacity to foster ad-hoc online activism (Berman and Mulligan 85) and the use of visual and rhetorical tactics to spread messages and disrupt website operation (Langford 98; Logie 36). Other scholars explore communication and networking factors, including the ability of power brokers to set agendas and foster community support (Oz) and the networking of various actors online to create an “attention backbone,” where sites with more traffic link to those with less (Benkler et al. 610, 613). Tufekci argues, “Elite unity or disunity is a major factor in whether protests successfully change policies” (220). Elite disunity leads to large OSPs aligning with grassroots protesters in opposition to politicians and proposed legislation (Tufekci 220). Scholars have paid much less attention to instances when contentious legislation fails to spur an online blackout protest. Lev-Aretz argues that most issues do not meet the high threshold for “extensive public participation” (243), but does not explore how to achieve this threshold.

This article begins to fill this gap addressing why the introduction of some contentious U.S. legislation results in blackout protests while others do not. This study employs qualitative analysis of proposed legislation, OSPs’ and activists’ statements regarding the potential laws, and news reports from 1996 to 2018. This analysis reveals that proposed laws threatening the power of large technology companies mobilised the largest protest actions. While the popular imagination celebrates online blackouts as successes of the Internet community and its grassroots activism in the popular imagination, this study illustrates the extent to which large technology companies have captivated the Internet infrastructure and mobilise users’ actions.

Online Blackout Protests in the United States

Image 1: Communications Decency Act blackout screen, image by Electronic Frontier Foundation (CC BY 3.0 2016).

Image 1: Communications Decency Act blackout screen, image by Electronic Frontier Foundation (CC BY 3.0 2016).

In 1996, OSPs and advocacy organisations protested the passage of the CDA which sought to protect children under 18 from “indecent” and “patently offensive” material on the Internet (U.S. Congress, Public Law 104-104, §502(1)(d)). Under the law, knowingly transmitting such material online became a criminal offense. President Clinton signed the CDA into law on 8 February, despite critics’ argument that the law was an unconstitutional limit on adults’ access to protected speech (Reno v. American Civil Liberties Union; Bicknell). The Electronic Frontier Foundation (EFF), among others, insisted the CDA was both vague and overbroad (Fena; McCandlish). The law’s failure to define prohibited speech meant the CDA would censor more speech than needed to achieve its goal (Reno v. ACLU; Fena).

On the day the CDA became law, opponents held an online blackout, called “Turn the Web Black” or “The Great Web Blackout.” The Voters Telecommunications Watch and Centre for Democracy and Technology (CDT) organised the protest in a week through e-mail (Berman and Mulligan 85; Dibbell). Approximately 1,500 websites participated in the action, including Netscape, one of the premier Web browsers of the time, Yahoo!, RealAudio, and websites belonging to Senator Patrick Leahy and Representative Jerrold Nadler (Mitchell; Lewis; Berman and Mulligan 85). Websites altered their webpages to white text on a black background with information about the CDA and ways to oppose the law (Image 1). Yahoo! removed all of its usual content and replaced it with a black screen and links to more information about the CDA (Logie 29). The EFF noted sites were

Turning their Web page and login screen backgrounds to black, to mourn the death of the Internet as we know it. Some … blanked out their entire online offerings, replacing everything that had been available with a single sentence: “This is what censorship looks like”. (McCandlish)

The protest occurred too late to affect the text of the enacted law; however, it did raise public awareness about its free speech implications. In 1997, the U.S. Supreme Court ruled the CDA was unconstitutional. After the victory, Bruce Ennis, legal representation for the plaintiffs, stated “the Internet is now basically safe from government regulation in the future” (quoted in Brown).

However, this sentiment was short-lived. A subsequent legislation, the Children’s Internet Protection Act (CIPA), required certain public library and school computers to use filters to prevent children from accessing harmful material online. This law did not spur a blackout protest. CDA protest organisers cited a variety of factors for this absence, including the increased use of the Web by people other than the small contingent of early adopters who were adamant that the Web should be a forum enabling free expression (Barlow) and the belief that a legal challenge would be successful as it was with the CDA (Brown). In addition, despite criticism from the American Civil Liberties Union (ACLU) and the American Library Association, CIPA had little effect on OSPs or on users who had Internet access at home, likely dampening potential opposition. In end, the Supreme Court upheld the law (U.S. v. American Library Association).

A widely known blackout protest occurred in response to the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) in 2011. These Bills would increase the Federal Government’s power to restrict pirated digital material and goods in the U.S. SOPA would allow the Attorney General to request a court order to force a service provider to “take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site” (U.S. Congress, H.R.3261 13). The proposed law would require search engines, such as Google, to unlink sites distributing pirated materials that hindered access to an entire site rather than only the portion containing piracy (Peckham; Logie 20) and decreased OSP internet traffic revenue. Broad interpretation of the law required OSPs to monitor the content available on their sites to ensure no pirated material was present (Logie 20). Thousands of OSPs, including Reddit and Wikipedia, claimed the legislation would censor the Internet (Reddit; Barnett). In response on 10 January 2012, Reddit announced an online blackout. Wikipedia announced its participation six days later (Logie 20-22).

OSPs altered their home pages and content for a 24-hour period between 18 and 19 January and implemented varying levels of disruption. Wikipedia editors voted to disrupt service globally, rather than only in the U.S. (Wikipedia). The English version of the site was inaccessible for 24 hours. Instead of accessing the free database with millions of articles, users found a statement encouraging them to contact Congress to protest this “frightening precedent of Internet censorship for the world” (Wikimedia). Wikipedia’s co-founder Jimmy Wales explained: “The general sentiment seemed to be that US law, as it impacts the Internet, can affect everyone” (quoted in Barnett). Similarly, Reddit shut down for twelve hours on 18 January and displayed information on how to take action (Reddit). Other OSPs did not completely disable service, but still participated. In the U.S. Google placed a blackout doodle over its famous logo and directed users to a petition against SOPA/PIPA (Svensson; Germick).

However, other large OSPs did not join in the blackout protests. Facebook’s chief executive, Mark Zuckerberg, stated his opposition to SOPA/PIPA in a Facebook post and a tweet (@finkd; Protalinski) but ultimately decided not to join the blackout. The reason was likely economic – Facebook could lose $12 million in advertising revenue if it went offline for a day (Taylor). Twitter also functioned normally during the protest citing its status as a business as central to its non-participation. Chief Executive Dick Costolo argued, “That’s just silly. Closing a global business in reaction to single-issue national politics is foolish” (@dickc). Wikimedia’s executive director, Sue Gardner, explained why there might be reluctance to take part in the online blackouts:

Most are commercialy [sic] motivated: their purpose is to make money. That doesn’t mean they don’t have a desire to make the world a better place –many do!– but it does mean that their positions and actions need to be understood in the context of conflicting interests.

Between 7,000 and 10,000 OSPs participated in the SOPA/PIPA protests and numerous sites encouraged users to sign online petitions and contact their Congressional representatives (Chang and Puzzanghera; Murphy). Users heeded the OSP’s call to action. Wikipedia reported 12,000 people commented on its post about the blackout and eight million people used its postal code tool to locate contact information for their elected officials. Twitter posts relating to SOPA numbered 250,000 an hour (Peckham). As voters contacted their representatives and the blackout protest progressed, sponsors of the legislation removed their support (McBride and Bartz). After the blackout protests, Senate Majority Leader Harry Reid postponed the PROTECT IP Act (PIPA) hearing “in light of recent events” and Lamar Smith, the House Judiciary Committee Chairman, postponed the SOPA vote, although maintained his commitment to combatting online piracy (@SenatorReid; Smith). Tufekci reminds us that although millions of people acted to oppose SOPA/PIPA, “looking at outputs […] without looking at the underlying capacity producing those outputs (Internet giants facilitating such calls and tweets) can be misleading” (220). In other words, OSPs prompted the blackout, but also made it easier for Web users to act.

Only a year after the SOPA/PIPA blackouts, hacktivist collective Anonymous called for a 24-hour Web blackout on 22 April 2013 to protest the Cyber Intelligence Sharing and Protection Act (CISPA) (U.S. Congress, H.R. 624; Your Anon News). The Bill enabled private companies to search user data, identify information that could pose a cyber-threat, and share the information with the Federal Government as well as other companies (Whittaker). Anonymous argued

The Bill’s intent is to stop cyber attacks […] However; the vague wording of the Bill could allow the government to use this new power to go behind privacy protection and monitor, censor, and cut off online communication. (Anonymous)

Opponents argued the Bill violated user privacy by sharing their information with government entities.

Although 400 websites agreed to participate in the blackout protest, no large OSPs joined. In fact, 28 major Internet companies, including IBM, Intel, Symantec, and Facebook, supported the proposed legislation (Tassi; Kleinman; Robertson; Kaplan). The President of TechNet, an organisation representing technology firms including Apple, Facebook, and Google, wrote to Congressional representatives supporting the Bill (Ramsey). A House Intelligence Committee document contains statements from industry businesses and associations in support of CISPA (U.S. Congress, “What”).

OSPs had few reasons to oppose CISPA. Unlike the CDA and SOPA/PIPA where the government would require OSPs to restrict activities on their sites or face liability, CISPA proposed greater power for OSPs. Additionally, under CISPA, OSPs were not civilly or criminally liable for sharing any information in good faith (U.S. Congress, H.R. 624 20). TechNet wrote, “We commend the Committee for providing liability protections to companies participating in voluntary information sharing” and Christopher Padilla, IBM’s Vice President of Governmental Programs, noted CISPA provides “useful legal protections” for companies (U.S. Congress, “What” 3). These were major factors for the low level of participation in the anti-CISPA blackout.

On 14 December 2017, the “Break the Internet” protest action utilised a number of disruption tactics in the 48 hours ahead of the Federal Communication Commission’s (FCC) vote to repeal Obama-era net neutrality rules. This issue pitted OSPs against ISPs, the services that provide Internet bandwidth to homes and businesses. While OSPs largely argued against the repeal of the net neutrality rules, the large ISPs favoured it as the move would increase their ability to control access to OSPs and the speed of these connections (Wozniak and Copps; Leskin). Protest organisers emphasised that Internet users should “Do whatever you can to get *everyone’s* attention and drive phone calls to Congress” (Battle). Organisers invited users to use provided code and messages to post on different platforms. OSPs, including Reddit, Kickstarter, Mozilla, GitHub, Imgur, and BitTorrent, placed messages on their websites urging users to contact Congress and fight for net neutrality. Kickstarter’s homepage, for example, read

Big cable and phone companies are trying to get rid of Net Neutrality protections so that they can control – and profit from – the flow of information online. If they succeed, they’ll be able to slow down websites, censor content, and block the free exchange of ideas. (Qtd. in Brodkin)

The page allowed users to enter their postal codes and phone numbers to find and call their Congressperson (Brodkin). Other OSP sites, such as Reddit (Brodkin), voiced concerns over throttling and capacity limits that would make it more difficult for smaller OSPs to compete resulting in less choice in providers and increased costs for users. Due in part to the actions of the large ISPs, the net neutrality rules ended on 11 June 2018, despite the protest and a Senate vote to save them.

A final legislation to consider is the Allow States and Victims to Fight Online Trafficking Act (FOSTA), enacted on 11 April 2018. The Act allows for civil liability and criminal prosecution of OSPs that “unlawfully promote and facilitate” prostitution and sex trafficking (U.S. Congress, H.R. 1865 1-3). While people have used OSPs to conduct prostitution and sex trafficking (U.S. Congress, “Backpage.com”), a myriad of digital freedom groups, victims’ rights groups, and sex workers, oppose the legislation. A major criticism of the law is that removing online advertisements eliminates the “digital footprint” law enforcement officials use for identification and recovery of victims (quoted in Harmon, “Sex”). Another central fear is the legislation’s threat to Section 230 of the CDA, a provision protecting OSPs from liability for user-generated content (U.S. Code, Title 47 §230). On its introduction, Google and Facebook both opposed the Bill for its Section 230 changes (Molinari; Jackman, “Internet”; Jackman, “Trump”; Consumer Watchdog). Google’s opposition took the form of a blog post (Molinari). OSPs, including Reddit, Twitter, and Yelp, wrote to federal officials protesting the measure’s Section 230 implications (Engine; Harmon, “How”). Blog posts and letter writing as forms of opposition are significantly less visible to website users than an online blackout protest because they do not disrupt services. A variety of factors could underlie the absence of an online blackout protest in this case, notably a concern that people might view OSPs as supporting prostitution and sex trafficking online. In fear of a negative public response, large technology companies mounted a quiet campaign opposing a previous iteration of the Bill. At the time, Congressional aides noted that the OSPs were “in a tough spot. They’re not going to speak out publicly against a human trafficking measure. But they are also opposed to it” because of its Section 230 implications (quoted in Consumer Watchdog 5). Although Google reversed its opposition to FOSTA, Google-supported advocacy groups, including the CDT and the EFF, continued the fight (Consumer Watchdog; Woolery; Greene). The EFF filed suit in June 2018, seeking to invalidate the law (Greene).

Some OSPs support the legislation. The Internet Association, a technology trade group with members such as Facebook, Microsoft, and Google, endorsed FOSTA in December 2017 (Beckerman). Facebook’s chief operating officer, Sheryl Sandberg wrote,

We at Facebook support efforts to pass amended legislation in the House that would allow responsible companies to continue fighting sex trafficking while giving victims the chance to seek justice against companies that knowingly facilitate such abhorrent acts. 

People have used the OSP to conduct prostitution and sex trafficking. For instance, property owners post advertisements offering housing in exchange for sex (Masnick, “FOSTA”). Facebook engaged in questionable behaviour when it sent some users a survey asking how they would respond to “a private message in which an adult man asks a 14-year-old girl for sexual pictures” (quoted in Masnick “Did”; Hern). Although Facebook supported FOSTA’s passage, depending on its interpretation in court, Facebook could face civil and criminal liabilities in cases such as the sex for rent advertisements. Facebook’s support for FOSTA appears to rest on a narrow interpretation of the law, which would shield the corporation from liability. Additionally, there is some evidence that Facebook based its position on a flawed understanding of Section 230. Internal sources state that the company believes heavy content moderation might violate Section 230, when the law itself encourages content moderation by OSPs (Masnick “Mistakes”).

The EFF charges that while large OSPs will be able to fund and survive the legal challenges arising from FOSTA, smaller companies will not. Additionally, the group argues that the law will censor and silence Internet users and trafficking victims. The large companies, therefore, “simply don’t speak for the Internet users who will be silenced under the law” (Harmon, “Sex”). However, due to the gap between the large OSPs’ and users’ interests, and the companies’ final support for the law, an online blackout was not used as a form of protest.

Conclusion

In the five cases considered above, the laws with the greatest implications for OSPs were also those that received the largest protests. Legislation and regulations that have received significant online protests include the CDA, SOPA/PIPA, and the FCC’s vote to repeal net neutrality rules. In these instances, as Tufekci argues, the interests of large OSPs and lawmakers were at odds and large companies found themselves aligned with grassroots opponents. In the CISPA case, large OSPs supported the Bill because they felt they had protections from liability. For FOSTA, OSPs perceived that the law would not negatively affect their businesses or that it would be damaging to oppose laws aimed at fighting prostitution and sex trafficking. Large OSPs, therefore, sided with the politicians proposing the laws and elite unity existed. These findings help confirm Tufekci’s point that elite disunity might have more influence than grassroots movements on successful protests (220). They also complicate the idea of elite disunity. In the FOSTA case, elite disunity exists, but due to the sensitive nature of the issue, OSPs chose less disruptive forms of opposition instead of a blackout protest.

In the U.S., OSPs utilised online blackouts as a means to protest legislation that imposed new legal responsibilities and business conditions. OSPs use blackouts to signify future online absences if lawmakers implement particular legislation. This study illustrates that blackout protests generally occur in response to proposed legislation that threatens the power or affects the business of large technology companies and OSPs. Few OSPs support online blackout protests when their own interests are not at stake. Without the support of the large OSPs, blackout protests remain small or non-existent, illustrating that although online blackout protests evoke images of the Internet community, they are aligned with the interests of powerful OSPs.

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Keywords


online blackout protest; Internet law



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