What the hell is the National Association of Scholars?

The Wall Street Journal published an OpEd last Friday by Peter Berkowitz, titled “How California’s Colleges Indoctrinate Students.”  Berkowitz argues that higher ed has been “politicized” by “activist professors and compliant university administrators,” leading to the hollowing out of education and erosion of civic cohesion.  He bases these claims on a provocatively-titled new report by the California Association of Scholars (a division of the National Association of Scholars), “A Crisis of Competence: The Corrupting Effect of Political Activism in the University of California.”

I don’t teach in the UC system.  I have some friends who do, and I’ve never heard them talk about waves of activist professors, but maybe that’s because their attention has been diverted to the furloughs and salary cuts that they have faced for the past several years.  The UC system has plenty of problems, but those problems stem from the defunding of  higher ed.

Still, what really caught my eye with this report was the organization behind it.  I am a scholar.  What’s this national association all about, and how come I’ve never heard from them before.  Did I miss the signup date?  What gives?  It’s not as though I’m that hard to track down.  I go to a TON of conferences.  Where’s their booth at the APSA annual meeting?

A few minutes of snooping around their website answered that question.  NAS is a conservative front-group concerned with issues like “Broad imposition of the “sustainability” agenda on university activity and campus life” and “neglect of character education.”*  Their membership includes “all who share a commitment” to their core principles, be they “undergraduate students, teachers, college administrators, independent scholars, [or] non-academic citizens.”  They also have their very own journal, “Academic Questions.”  There’s probably a very good reason why I’ve never heard of this journal before.

…So, by “National Association of Scholars,” they actually mean “DC lobby of conservative opinioneers.”  That’s some fiiiiiine corporate double-speak.  What’s interesting to me is that they have never even tried to interact with an actual professor like myself.  If their goal is to improve the quality of rational debate on college campuses, they might consider participating in one from time to time.

Falsely-labeled conservative front-groups are nothing new, of course.  The environmental movement has had to face up to groups like this for decades.  “Concerned Citizens for Responsible Energy Policy” (a name that I just made up, then googled to make sure it isn’t a thing), which turns out upon deeper inspection to be a shell title for Shell Oil’s lobbying efforts.  It’s a solid investment on their part — journalists will turn to them when looking quotes from “both sides” of a debate.  Those same journalists are unlikely to devote a whole paragraph of their article to explaining that the group is pure astroturf (that would be godawful prose).  Then readers are left believing that the debate is between serious-sounding citizens groups and think tanks, rather than between citizens groups and Big Oil.

Still, I’d like to make one modest proposal: when we engage in debates about university research, how about if we hold ourselves to the standards of university research?

Apply a dollop of academic integrity and call your organization what it is.  You are not a National Association of Scholars if you do not even make an attempt to engage, associate with, or provide representation of professional scholars.  The name demonstrates equal parts media-savvy and intellectual hackery.  Do better than that.

In their mission statement, the NAS states that “The NAS advocates for excellence by encouraging commitment to high intellectual standards, individual merit, institutional integrity, good governance, and sound public policy.”

…High intellectual standards, institutional integrity, and good governance.  This organization does not even live up to its own mission statement.

What an embarrassment.

 

 

*I’ll be working on some new course designs for the fall.  I’m curious where on the syllabus I ought to include “character education.”  Are they envisioning Socratic method or lecture?  Scantrons or essay questions?

Ontologies of Organizing, Part IV: On Working with Allies

Several months ago, I wrote a post about Occupy Wall Street and “playing well with others.”  My focus at the time was on progressive organizations like DailyKos, MoveOn, and Democracy for America.  The point was that allied organizations needed to find ways to offer support and solidarity without trying to take things over.  I felt they were doing a good job then.  I still feel they’re doing a good job today.

#OWS, on the other hand, could be doing a lot better these days.

In the past few weeks, there have been a number of troubling signs.  The first was the announcement of their May 1st “general strike.”  Laura Clawson, at DailyKos, posted a critique.  Her point was simple enough: what they’re planning is a day-of-action, not a General Strike.  Days-of-Action are judged differently than General Strikes.  A General Strike is judged on the scale of the national workforce.  A day-of-action is judged on the size of your rally, creativity of your tactics, etc.  Laura Clawson is an ally.  She’s someone who would like to be on the side of #OWS, and has been in the past.  But the General Assembly decided instead that they would be better off without the netroots, and without organized labor, on this one.

The second troubling sign came from the #MillionHoodies march last week in NYC, in response to the Trayvon Martin tragedy.  Elon James White wrote a post afterward, titled “How Occupy Wall Street Co-opted the Million Hoodie March.”  The article begins “I now have an issue with Occupy Wall Street.”  Here’s the key section:

With chants of “We are the 99%” and signage to that effect as well, I was a little thrown off. I thought the purpose of this march was to bring awareness to the death of a young boy. Soon after the march started confusion was all around. Which way were we marching? Who was leading the charge? After we walked a few blocks members of the Occupy section of the march started running down the street knocking down trash cans. I was told later that some attempted to knock down police barricades and police scooters used to guide the marchers. I immediately became uncomfortable because that’s not what I signed up for. I wanted to speak out against injustice—just causing general destruction wasn’t on my agenda. Soon some Occupiers started chanting “F**k the POLICE,” one young white male wearing skinny jeans and a Justin Bieber haircut started yelling “THIS IS WAR, WE WANT WAR!” To which a hoodie-clad young black adult said “Hey, uh we don’t really want war, why don’t you tone that down. I’m about to graduate college in a few months.” The white male kind of laughed and kept moving forward yelling something else.

Elon James White is an ally.  He’s one of the most insightful progressive commentators around today.  (He’s also one of my favorite comedians.)  He’d like to be on the side of #OWS, and he has been in the past.  But just as netroots progressives needed to take care in playing well with others when supporting OWS, #OWS activists need to take the same care when supporting Trayvon Martin activists.

Finally, there’s a Gawker article by #OWS activist Mobutu Sese Seko, “Occupy Wall Street and MoveOn Go Together Like MoveOn and 1999.” This one takes the cake.  MoveOn is part of a massive progressive coalition that is planning The 99% Spring, an audacious effort to train 100,000 people in non-violent direct action.  That’s huge.  Charles Lenchner attended the training for trainers last weekend and offers a compelling response to #occupy critiques of the event.  Seko doesn’t like 99% Spring, because it didn’t originate in General Assembly meetings.  So he labels it “astroturf:”

It’s Occupy Wall Street brought to you by MoveOn.org, the people who send you 17 emails per week asking you to sign milquetoast petitions or read unctuous defenses of whatever castrated legislation Harry Reid has limply waved at the opposition.

Seko doesn’t actually know anything about MoveOn.  They don’t just send milquetoast petitions.  Really, there’s this even a whole book about how MoveOn isn’t clicktivism (forthcoming! May 30!  Preorder it!).  They’re hardly astroturf, unless we’ve decided to define astroturf as “anything that I personally don’t happen to like.”

MoveOn is an allied organization.  The coordinators of The 99% Spring — people like Liz Butler, an outstanding organizer who I’ve known for over a decade — aren’t astroturfing.  They’re seeking to advance many of the values held by #OWS.  They’ve been careful not to coopt.  But they’re also going to seize this moment.  Telling your allies “help is only welcome if you’ll submit to our endless series of meetings” isn’t a particularly effective way to grow your movement.

Activists like Mobutu Sese Seko are caught in a classic bind.  They would like their movement to grow.  They would like to achieve substantial social progress. But they don’t want to deal with the difficulties and complications that come with growth and success.

Instead, they have wrongly concluded that “our process is our politics.”  The General Assembly isn’t a unicorn.  Its an unwieldy experiment in radical, consensus-based democracy.  Such experiments are not new.  They tend to work a lot better at small-scale than at large-scale.  It is hard not to read Seko as the activist equivalent of an obnoxious bureaucrat: “This massive action is not permitted!  99% Spring didn’t fill out their TPS form!”

I won’t pretend to know what the future of #OWS is.  But I’m sure that Occupy activists have a lot of agency in determining that future.  If they want Occupy to maintain relevant now that the encampments have been broken down and the national spotlight has moved elsewhere, they’re going to need to accept the reality of allies.  Laura Clawson, Elon James White, and MoveOn aren’t going to drop all of their good work and wait for General Assemblies to work out their internal disputes.  Occupy activists are not immune to the need for “playing well with others.”

…If you can’t convince your allies to stand with you, what chance do you have against powerful opponents?

Occupy Wall Street in 7 chronological images

I’ve been thinking a lot recently about the evolution of Occupy Wall Street.  I think the following seven images do a nice job of capturing the development.  They also tell us something about how social movements evolve, and which features can safely be labeled Internet-related vs traditional.

This first image is a screenshot of the Adbusters.com blog post which first proposed the occupation in July 2011.  You may recall that I was not originally a fan.  They were calling for 20,000 people to descend on Wall Street and set up a festival of resistance.  The author, Micah White, was already saying that if it failed, he’d blame MoveOn-style clicktivism.

Here we see a couple of competing internet-related phenomena.  (1) online self-publishing means leads to a democratization (small “d”) of information production.  #Occupy began as a blog post.  That said, there’s also (2) not all blogs are equal.  Adbusters.com is the website of a longstanding ink-and-pulp publication, with significant cache amongst culture-jammers.  As Matt Hindman points out in The Myth of Digital Democracy, web traffic follows a power law/”rich get richer” distribution.  If #occupy had began as a blog post on some random independent blog, the odds of it gaining attention would have been much much worse.

This is the iconic ballerina poster that Adbusters and company developed during the leadup to the September 17th protest.  The slogan “what is our one demand?” presages the ongoing debates that would appear in later media critiques and leftwing criticism.  Unlike most rallies and protest events, which have a clear message and a clear target, #OWS was meant to tap into a wider vein of public antipathy to wealth disparity issues.  It made for powerful artwork, but unclear organizing.

This third image was included in ABC’s initial #occupy article.  Protest organizers had missed their stated goal of 20,000 long-term protesters.  A few thousand had showed up instead.  Denied access to Wall Street itself (and planned on a Saturday, when the NYSE was empty anyway), a few hundred of the protesters decided to set down roots in nearby Zuccotti Park.  I labeled it a failure (nice one, Karpf).  Coverage of the protest was sparse, even amongst left-learning media.  The lack of a clear target or demand, coupled with the lower-than-expected turnout, meant that the initial protest action simply didn’t appear very newsworthy.

Simultaneously, a tumblr site called We Are the 99 Percent was gaining attention.  The site invited visitors to write their story, Sorry Everybody-style, on a piece of paper, snap a photo, and submit it.  This provided a means of participation with movement-sympathizers who were not themselves part of the encampment.  It also created a valuable trove of images and stories.  While opponents of the protest wanted to dismiss it as a small group of radicals gathered in a park, the tumblr site provided a compelling counter-narrative.

None of those images or stories would have amounted to much if not for the police overreaction one week after the protests had begun.  Mainstream media attention remained slim until two peaceful female protestors were cordoned off and pepper-sprayed by an overzealous policeman.  The action was caught on film and uploaded to YouTube.  As has historically been the case, the abuse of state power led to mass awareness of the protest events.  The actions of this one police officer propelled #occupy into the national headlines.

Scale-shift occurred a month later, with a massive rally in New York.  This scale-shift featured important allies — traditional labor organizations and netroots advocacy groups, in particular — who mobilized their member/supporters.  The tens of thousands who attended did not then join the encampments or participate in a General Assembly meeting, but they did legitimize the actions and further expand the reach of the message.

The participation of these allies created a new dynamic for the occupiers, though.  With the success of the movement in grabbing public attention came a set of challenging dynamics surrounding cooperation and cooptation.  The problem for a popular movement lacking “one demand,” employing consensus-based deliberation is that suddenly all sorts of people want to claim the mantle of  “we are #occupy.”  Size, longevity and success require process and procedure.

This final image best defines #occupy today.  Occupy Wall Street hasn’t ended.  It has morphed.  While Zuccotti park is no longer physically occupied, #OWS has become a fixture of the national conversation.  Members of the community engage in an ongoing series of conference calls and in-person meetings.  They plan actions, discuss new memes, and struggle with the same organizational issues that have traditionally faced successful social movements.

I take two lessons away from these images.  First, the #Occupy movement is internet-mediated in important ways.  Without the web, key moments in this process simply can’t occur.  Its a lot harder to gather people for a protest event in the older media environment.  Its also a lot easier to ignore left-wing protestors gathering in a park.

But, second, being “internet-mediated” is not the same as “organizing without organizations.”  The new media environment changes some important features of social movement organizing.  But plenty of traditional constraints remain the same.  Conflict attracts news attention.  Mass protest participation requires the engagement of allies.  That engagement in turn breeds difficult coalition dynamics. And in the end, Occupy itself becomes an organization — not the standard bureaucratized organization we’re used to, but an organization nonetheless.

Those are the big lessons that I draw, and the images that I think best tell the story of occupy.  What alternate lessons do you take away?  What images have I left out?

RIAA Chief Needs Better Understanding of Fairness

Some people will use every single under-handed tactic in the book to win—and then, if they lose anyway, complain that the game was rigged.

In a New York Times op-ed yesterday, RIAA head Cary H. Sherman whines that his side lost the latest round of the copyright wars because, in his eyes, the opponents of SOPA and PIPA acted unfairly.

For those who have been following the copyright debate for longer, this claim is so laughably ironic as to need no rebuttal. That the Times ran it, however, suggests that a broader historical context is needed.

Among other groans, Sherman rails against the anti-SOPA crowd for describing the bills as “censorship,” which he describes as “a loaded and inflammatory term.” He says he would rather have “respectful fact-based conversations” using “reason, not rhetoric.”

Yet in the same essay, Sherman continues the content industry’s decades-long history of using every loaded and inflammatory term they can think of in describing infringement.

Sherman repeatedly eschews the more accurate term “infringement,” choosing the morally loaded (and inaccurate) term “theft” instead. He compares sites accused of online infringement to “stores fencing stolen goods.” He accuses SOPA opponents of “supporting foreign criminals,” “misinformation,” and “demagoguery.” He even wonders how many of the bill’s opponents may be among the members of Anonymous who engaged in retaliatory online attacks against his group.

These accusations against the moral rectitude of their opponents are a tried-and-true pattern for the content industries. Now Sherman is upset that SOPA opponents used a morally loaded term? Anybody who has paid any attention to the debate over copyright should laugh out loud.

In addition to being on the wrong end of the accusation of rhetorical hyperbole, Sherman is also on the side that has a far less sound record of making accurate factual claims and of including all relevant details.

In this very essay, Sherman plays fast and loose with the truth. He claims that the bills were “carefully devised” and were proceeding after policymakers had “studied the problem in all its dimensions, through multiple hearings.” This could hardly be farther from the truth.

The bills were written in blatant disregard of a veritable library worth of skeptical input and proposed amendments from the tech sector, civil society groups, internet engineers, legal scholars, and the public. Rep. Lamar Smith, the lead sponsor and Judiciary Committee chair, was trying to ram the bill through on the House side after a single hearing in November that was so stacked in favor of the bill—five supporters to just one opponent—that the very even-handed group Open Congress described this sham of a hearing as a “lovefest”.

During the markup in December, the bill’s House opponents practically begged Smith to hold more hearings to hear more of the technology and civil society sectors’ concerns about the bill. Smith was unmoved and tried to move forward anyway. That is hardly studying the problem “in all its dimensions,” to say the least.

Next, Sherman defends the legislation’s proposals to shutter accused infringers, saying it wouldn’t be censorship because these sites would only be shut down after a court had undertaken “a thorough review of evidence.” First, the claim that these one-sided hearings would be “thorough” is, um, generous; the operator of the accused website would not only not have any right to contest the charges in court, they would not even be notified until after it was over! In nearly all cases, the site would be shuttered before the operator knew what happened.

Further, this misleadingly implies that sites would only be affected based on a court proceeding, which is patently untrue. Under Section 103 of SOPA, a letter from a coypright holder would be sufficient to compel payment processors and advertisers to stop doing business with a site. This sets up a more extreme version of the DMCA’s notice-and-takedown provisions, except rather than nudging behavior by creating a safe harbor for sites that comply (and thus creating such strong incentives to comply that a takedown notice is almost compulsory), it actually compels companies to obey these letters from the content industry that have never seen the inside of a courtroom.

Of course such a system will be subject to both human error and genuine malfeasance. We know this for a fact because of the many examples of fraudulent, mistaken, and abusive takedown notices under the DMCA.

Of course, these are just the inaccuracies in the article itself. In general, on the count of circulating misleading information, the content industry and their allies in the government are so guilty as to have few peers in DC.

Their estimates of how much infringement costs the US economy are an especially rich source of whoppers. These estimates have varied wildly, but they have consistently been so high as to be laughable. You may have heard the figures of $250 billion and 750,000 US jobs bandied about on a regular basis (though, granted, this is an estimate for all IP infringement). It turns out this figure is literally made up out of thin air, but it has been cited endlessly by IP zealots of all stripes.

When will Sherman begin admitting what the Government Accountability Office found in its 2010 report (pdf), which describes all of the major problems in all of the industry-funded studies of copyright infringement? (The GAO concluded that it is “difficult, if not impossible, to quantify the economy-wide impacts” of infringement.)

Where is Sherman’s outrage about the MPAA’s laughable estimate that infringement costs the movie industry $58 billion/year? (For some perspective, that’s a figure larger than the GDPs of 10 different US states.)

Sherman (who, by the way, earns an annual salary of over $3m) has also made incredibly inaccurate and misleading statements on other matters, even doing so in person in Congress. For instance, in a 2004 hearing on proposed DMCA reforms, he contended:

Second, there has been an impression created that the DMCA disallows fair use. In fact, it allows consumers who legally acquire a copy to make a fair use copy and you have a triennial review process to provide even further assurance that fair use rights are not lost.

The DMCA only prohibits companies from selling black boxes to strip away content protection for any purpose.

Not only is this patently untrue, if Sherman was honest with himself, he knew it was untrue as he was saying it. Section 1201(a)(1) of the DMCA actively prohibits circumvention of access-controlling DRM (including, e.g., the protection on DVD discs), which makes it illegal for consumers to make fair use copies of the media they legally acquire. To say the DMCA “only” regulates devices is, ahem, incorrect.

Further, his reference to the Copyright Office-administered triennial review process is also disingenuous at best. In the 2000 and 2003 DMCA hearings, consumers and consumer advocates had twice asked for the right to make fair use personal copies of encrypted media such as DVDs, and twice the Copyright Office had told them no. As Oscar Gandy and I demonstrate, those proceedings were marked by the Copyright Office giving as few exemptions as possible under as narrow a set of terms as possible with little regard to consumer welfare. This has improved a bit in the years since, but Sherman’s claim would still be false today.

I fully support a rational, fact-based discussion about the future of copyright. Unfortunately, the content industries have spent at least the last three plus decades polluting the discursive waters with loaded rhetoric. Remember which technology it was that MPAA chief Jack Valenti invoked the Boston Strangler to damn? That’s right, the VCR, and he did so in 1982. They have also spent at least the last decade trafficking in skewed, inaccurate, and downright-made-up statistics to support their claim that the post-internet sky is falling.

Setting aside Sherman’s radical hypocrisy on loaded and inflammatory terms and misinformation, there’s a deeper critique here: For far too long, copyright law has been decided in a nearly-private discussion between the affected industries and select policymakers with little public input. Jessica Litman makes a very persuasive case that this was true throughout the 20th Century.

Since then, as I show in my forthcoming book, the EFF has gotten heavily involved in copyright advocacy, and Public Knowledge has become a respected on-the-Hill counterweight to the industry’s clamoring for ever-stronger copyright enforcement. These groups have also helped persuade the tech sector to stop acquiescing to the kinds of compromises that let technology-shackling acts like the AHRA and DMCA sail through in the 1990s. Thanks to these changes, it has been much more difficult for Big Content to write new changes to the copyright statutes.

Still, until late 2011, the details of a proposed bit of copyright legislation had never really penetrated into much of the public conversation. In November, over a million citizens expressed their opposition, and even this was not enough to make an impression on Congress. The content industries have been playing the lobbying game to a masterful degree for decades, and when those kinds of relationships and campaign donations are on the line, calls from angry constituents can be ignored—at least until there are so many calls that it melts the phone lines.

Last month, of course, everything changed, and now Big Content is outraged. MPAA chief Chris Dodd, as part of his own personal lashing-out (which as far exceeded that by Sherman), made far too transparent the nature of this game. On January 20, he went on Fox News and said:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.

Dodd, a former Senator, may actually have crossed a legal line here, making explicit the implicit exchanges that characterize the systemic corruption that Lessig describes as DC’s “gift economy” of trading favors. Regardless of whether he could be prosecuted, however, is almost immaterial. Rather, it highlights the profoundly unjust and immoral way that copyright law has been made up until this point.

It was an unexpected development, to say the least, that so many of the world’s leading websites chose to act together to bring greater public attention and scrutiny to this important issue. I definitely count it as a blow for democracy and against the way of lawmaking that moves along without even the fear of substantial input from the voting public.

Whenever both RedState and MoveOn think a bill is bullocks, the odds are high that the proposal is not just imprudent, but that it is being advanced in a profoundly anti-democratic way.

If Sherman wants more fairness in policymaking, he should lobby for systemic reforms instead of railing against a genuinely democratic movement.

(10:25 pm: Edited b/c I accidentally posted the whole thing in twice. Whoops.)

Stop Online Piracy Act: Terrible Law. Great Example of Internet Mobilization?

We’re in trouble. The future of the internet is in danger, and if that danger comes to pass, it’s both unhealthy for and a very bad indicator of the health of our democracy.

Congress is already very close to passing companion bills to censor the internet, the Stop Online Piracy Act (SOPA, H.R. 3261) and the Protect IP Act (PIPA, S. 968). This is in addition to the domain name seizures already underway by Immigrations and Customs Enforcement (ICE).

All of these efforts are terrible ideas. Their supporters don’t understand or care about the internet and are happily willing to break the internet to appease the content industry. It is among the very worst contemporary examples of a government that is of, by, and for special interests, and if it passes, it will be a slap in the face of democracy, free expression, due process, and technological innovation. To top it all? It won’t even do much to stop online infringement.

Fortunately, there may be signs that things are turning our way. I’ll get to that further below.

EFF has a great summary of the several ways SOPA can lead to a site getting shut down. Section 102 deals with foreign sites and is the most all-encompassing, but 103 and 104 are actually easier for rights holders to (mis)use, and they apply to domestic as well as foreign sites, so I’ll start there.

Section 103 allows IP rights holders to go directly to a website’s payment processors and advertisers—and to demand that these third parties cease all business with the website operator. These payment processors and advertisers then have just five days to act. The website operator has the right to file a counter-notice that they are not substantially dedicated to infringement, but (a) they may not get the chance until after the payment processors and advertisers have already cut off payments, and (b) the third parties have no obligation to take the counter-notice as final and re-establish a business relationship.

Section 104 takes this “default=censorship” strategy even further. Everyone in the internet ecosystem—registrars, web hosts, advertisers, financial processors, search engines, etc. etc.—gets near-categorical federal and state immunity for any decision to terminate a business relationship with a site (or even to shutter a site) “in the reasonable belief” that the site is dedicated to infringement. Under Section 103, a rights holder must at least file a claim. Under Section 104, even the intimation that a site is infringing might be enough to get it shut down—and the site would have no legal recourse.

The Administration also gets in on the fun in Section 102, which gives the Attorney General the power to use government-mandated Domain Name System (DNS) filtering to stop Americans from accessing “foreign infringing sites.” A domain name, such as Google.com, is an easy-to-remember way to tell one’s computer to go to a specific numeric address (e.g., 74.125.39.147). It is this number (the IP address) that identifies that site’s server (the computer that hosts the website). Everyone enters the domain name into their browser’s internet address bar, but the numbers would take one to the same site. Click on the numbers above or paste them into your browser to see for yourself.

Under Section 102, if a site were found to be primarily dedicated to infringement, the government could “seize” the site’s domain name. More precisely, the domain name registrar—a company that keeps track of which domain names are attached to which servers—would, if US-based, be compelled to stop sending users to the correct server. All domestic ISPs would also be forbidden to take you to the right server (the number behind the name), and advertisers and banks would be forbidden from doing business with these companies.

If the government found a foreign site to be infringing under these bills, the government would try to make it disappear for US audiences.

If this bill becomes law, we will see the shuttering and/or financial starvation of thousands of websites—which are, of course, a form of speech and/or press. They would be silenced and/or starved based on either an affidavit by a rights holder, a mere suspicion by a business partner, or (at best!) a one-sided court hearing with a low burden of proof. Little wonder then that legal scholars from (my friend and) rising star Marvin Amorri to the legendary constitutional scholar Laurence H. Tribe (pdf) have concluded that the bills are unconstitutional threats to the First Amendment.

By now it should be clear that, if passed into law, SOPA or PIPA would have devastating consequences for innocent actors who are mistakenly identified. The web seizures undertaken by U.S. Immigrations and Customs Enforcement (ICE), beginning in 2010, illustrate this peril all too well. Several websites have been taken down for posting media files that were authorized and even actively shared by the copyright holders or their representatives. Others have apparently been seized merely for linking to allegedly infringing content.

One in particular, DaJaz1.com, has become the cause célèbre of the anti-domain-seizures movement. It was one of a cluster of hip hop websites seized last year. Major voices from Vibe to Kanye to P. Diddy were actively promoting the sites, hardly a sign that they are dedicated to copyright infringement.

Last week, the feds finally gave up on DaJaz1. TechDirt (which has nearly gone all-SOPA, all-the-time) had the headline:

Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…

Their opening clarifies exactly how unconstitutional this is:

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

They go on to detail how DaJaz1’s owners were stonewalled, blockaded, and never allowed their day in court by the feds—for over a year—while the feds managed to arrange a court process during which all court proceedings (including several granting extensions that DaJaz1’s owners should have been able to contest) were secret and all the filings were sealed and not open to the site owners.

Once the details of the accusations came out, it turned out that the allegedly infringing songs were given directly to the blog by copyright holders’ agents in the hopes of promoting the music. The RIAA was the source of the original complaint, and one of the songs in question was not even released by an RIAA label.

Another operation using similar methods but for a different goal—seizing sites with child pornography—mistakenly took down 84,000 sites in one shot, resulting in each of those thousands of sites being down for 3 days. Even worse, each domain was redirected to an ICE notice that the website had been seized for trafficking in child pornography. Nearly all of those sites were not dedicated to child pornography, and to my knowledge, ICE never even apologized to them for the error.

Further, it takes little imagination to picture a devastating chill on legitimate sites that make fair uses of copyrighted content. If I run a news and commentary site, I may be less likely to include portions of copyrighted works, even if such inclusion is very likely fair use and crucially relevant to my discussion of the matters at hand.

In particular, media criticism sites would be in grave peril; how long after the bill’s passage would it be before partisan news outlets started using the new law to silence their critics? How long before FoxNews goes after Media Matters for America? Think that’s far fetched? Witness Righthaven’s efforts to sue bloggers for using even brief quotations. And what was on the list of threats they used to scare people into paying licensing fees? Domain seizure. Among other things, these bills would give a hunting license for those who would like to shutter the sites of upstarts, competitors, and critics.

At least these bills will stop piracy, right? Hardly.

Dedicated infringers will still find infringing sites—especially foreign sites that host infringing files with impunity. Remember, the feds are seizing the site name (e.g., Google.com) but not the number behind it (74.125.39.147). All you need is a small program to tell your computer to go to the right number—and, because the bill will forbid your ISP from getting you there, a proxy server in the middle. The same strategies have already proven successful for dissidents behind government firewalls, who still manage to upload and download forbidden information—despite far more active, on-the-fly, and resource-intensive censorship schemes.

Programmers have already developed tools to work around these restrictions. The law hasn’t even passed yet, and already there is a Firefox plugin that would help users work around SOPA-like restrictions.

You might think that at least payment processors and advertiser networks would be scared off of dealing with these sites. If it were that easy—if we could target the banks and advertisers that support internet scofflaws—then spam and other internet evils would have long since been wiped out.

The internet breeds decentralized innovation, and innovators will spring into action to help users circumvent ISP and search engine filters as well. This software will also be considered grounds for legal action—with the goal being to ban the tools, as the 1998 DMCA bans DRM-hacking devices. That’s worked so poorly that multiple free circumvention tools are available for most major DRM systems. There are so many DVD rippers that LifeHacker has a post comparing rippers to help you choose the best.

As if all of the above failures and offenses were not enough, these bills would harm our economy and reduce our competitiveness in the internet age. If SOPA were law when YouTube was getting started, the site probably would have been shuttered. The next YouTube will be much less likely to be born in the US if it can be kicked out of the legitimate portion of the web before it has really grown up. The EFF warns that sites like Etsy, Flickr, and Vimeo would be in danger.

Internet innovation is one of the few bright spots in the economy, and major internet firms have warned that this will increase the cost of regulatory compliance and decrease our competitiveness. Venture capitalists have also warned that SOPA would substantially decrease their willingness to invest in US technology start-ups. Union Square Ventures, just down the street here in NYC, even put this link saying the same thing on their homepage.

Senator Ron Wyden (D-OR) has placed a hold on PROTECT-IP, and he has even vowed to filibuster the bill should it come to the Senate floor. Because of this principled opposition and his long record of standing up for internet freedom, I made a donation to Sen. Wyden’s re-election campaign—even though my wife and I are watching every dollar as we save to buy our first home.

So these bills are terrrrrible, but they enjoy a lot of support in the House and Senate—30 cosponsors in the House, and a whopping 40 in the Senate. This post is derived from an email I sent to my Senators and Representative, and all three wrote back with disappointing notes to the effect of, “Yeah, but we gotta stop internet infringement.” Surely this is unrelated to the content industries having spent far, far more money on lobbying and campaign donations than their opponents on this issue.

Which brings us back to democracy.

In response to these bills, we have seen the swelling of a major internet movement—nearly the groundswell we saw around network neutrality in 2006. Opponents created a campaign declaring November 16—the day of a hearing in the House that was heavily stacked in favor of SOPA—as “American Censorship Day,” a campaign that went viral in a major way. Over 6,000 sites including Wikipedia, Creative Commons, Mozilla (including the default start page in Firefox), Reddit, TechDirt, and BoingBoing, directed traffic to a single action site, AmericanCensorship.org. At the time, the site said that it had generated over 1,000,000 emails and four calls per second to Congress. To date, AmericanCensorship.org has earned over 650,000 Facebook likes and 63,000 tweets.

This is democracy in action. After all, most people don’t support draconian copyright enforcement, and a solid majority of people oppose government attempts to block access to infringing materials. (40% support, 56% oppose; this skews to 33% for, 64% against when framed as censorship.)

If Wyden’s hold and the opposition can stop this fast-moving train(wreck), then perhaps democratic values and majority opinion can actually shape the future of the internet. Just maybe, a public outcry can stop a terrible idea backed by special interests.

If not, we may be in big trouble—and not just because the internet will be broken.

Links and Commentary: Required Reading on #OWS

…Seriously, there is no excuse for frequent visitors of Shouting Loudly to not also be reading David Meyer’s commentary at Politics Outdoors.  He just negated two posts that I was planning to write, because he went ahead and wrote them better.

The second post, “Occupy Wall Street Needs an Exit Strategy” is particularly important.  The occupations are currently working phenomenally well, but we should keep in mind that they are symbolic actions.  Zuccotti Park isn’t actually Wall Street.  The occupiers aren’t shutting anything down; they’re shining a spotlight.  And that spotlight, for the moment, is bright.

Eventually, however, the poetry of this symbolic action will fade.  On month 6, day 4 of the occupation, there won’t be much media coverage – not because of a “blackout,” but because just about every newsworthy angle will have been explored in exhaustive detail.  At that point (well before it, actually), the protests will need to morph into some other form in order to maintain their symbolic resonance.  I’m not sure what that form needs to be, and the change doesn’t have to happen particularly soon, but a change surely needs to come eventually if these protests are to continue seizing the national imagination and influencing the national conversation.

Likewise, Jack Goldstone makes a number of smart points in a post at New Population Bomb.  He says that, particularly if the institutional left (donors, in particular) lines up behind #OWS and adds resources, then it could be the Tea Party of the left.  That left-right symmetry is an interesting puzzle.  I certainly think that #OWS is the nearest equivalent available to the tea party.  But the network structure of the left and the right is different enough (particularly within donor alliances — the Democracy Alliance has nowhere near the resource coordination of the Kochs and Coorses), and the relationship to major media operations (*cough* Newscorp *cough*) mean that we’re unlikely to see a parallel trajectory.

Finally, Sid Tarrow takes the counter-perspective in a piece at Foreign Affairs, “Why Occupy Wall Street is not the Tea Party of the Left.” I’d offer a variation on Tarrow’s remarks.  I think he’s right that #OWS is something new, and that previous social movements are only a weak guide for understanding it.  But, as I’ve written before, the same seems to be the case for the Tea Party.  The Tea Party is not united around one specific demand.  It is (to quote Van Jones) a “meta-brand.”  I’ve felt for quite awhile that the Tea Party is an ill-fit for our traditional conceptions of social movements.  #OWS is an ill-fit in largely the same ways.

[h/t to Jennifer Hadden for pointing several of these links out to me.  You should read her work.  And she should start a blog (or join this one).]

Ontologies of Organizing Part III: On Playing Well With Others

Okay, let’s be clear #OccupyWallStreet has gotten awesome.  There are now solidarity occupations in 250+ locations nationwide.  Labor Unions and the Netroots are fully onboard, and yesterday afternoon’s march in NYC had somewhere between 15,000 and 20,000 participants.  As Jon Stewart put it last night, the media attention has gone “from blackout to frenzy.”  Impressive stuff, on every count.

Two of the best pieces I’ve read recently on the topic come from Ezra Klein’s Wonkbook.  The first is a guest post by Rick Yeselson, “The four habits of highly successful social movements.”  The second, by Ezra himself, is titled ‘A tipping point for Occupy Wall Street.

We’re now at the point where the two “ontologies” I’ve been talking about (organizing-as-public-art and organizing-as-public-process) come together.  Credit to Adbusters and the rest of that community — they’ve accomplished something that Alinsky-style organizing almost never does.  #OWS taps into a vein of broad public discontent.  The lack of a clear target, the lack of clear goals, has become a virtue rather than a vice.  As Ezra puts it “Occupy Wall Street has created a space for some type of populist movement to emerge.”  Community organizing is great for putting specific pressure on specific targets.  Broad cultural gestalts are outside of the organizing-as-public-process toolbox, though.

One thing that we’re going to begin to see now is a tension between these two styles, and the networks and organizations associated with them.  I was at the Rebuild the American Dream/Take Back America conference (#takeback11) earlier this week, and every single speaker made reference to the occupiers.  They then drew connections between the protest events and their specific issue agendas.  #OWS is a reason to oppose Bank of America.  It’s a reason to pass the American Jobs Act.  It’s a reason to support Net Neutrality (Demand Progress sent out an e-mail urging supporters to #occupytheinternet).  It’s a reason to oppose the Keystone XL pipeline.

The influx of these new organizations can occur artfully or poorly.  They need to know that this protest did not originate with them, and treat the original activists who have been camping out for weeks with respect.  I want to highlight two positive examples here, that I hope to see many organizations emulate:

The first comes from Chris Bowers, of DailyKos.  Chris was on a panel at #takeback11, and was asked what advice he had for the occupiers.  His response (I’m paraphrasing) was, “I don’t have any advice for them, I think they’re doing great on their own.  I just want to find ways I can help.”  He then gave a concrete example — the flood of interest in #occupy events was causing occupytogether.org, so he was setting up mirror sites through DailyKos to help out.  That’s pitch perfect: this isn’t a case where “the pro’s have no arrived.”  It’s a case where one style of activism has achieved something that another style couldn’t.  Now both are needed, and face the difficult task of coexisting.  Respect goes a long way, in that regard.

The second comes from Democracy for America.  DFA, like all the other netroots and labor groups, sent out e-mails yesterday urging people to attend the rally.  Then they also sent out an additional action request:

“Dave,

The Occupy Wall Street protest is a watershed moment.

For weeks, protesters have been camped out in Liberty Square near Wall Street.

They are marching during the day and sleeping on the street at night, facing arrest and police violence. They are gaining media attention, inspiring thousands more to join them every day in New York and in cities across the country — and they are giving a voice to the American working class that has been attacked by big corporations and their allies in Congress.

The Occupy Wall Street protesters are standing up for us — because of that, thousands of people across the country have joined together to send them food to keep them going.

These donations have worked. They’ve kept the occupation strong. But it’s October in New York City and getting colder each day.

 Protesters are now in immediate need of 200 sleeping bags to keep warm and keep the occupation going.

Donate $20 here to buy a sleeping bag to keep the occupation going in the cold.

The donation link goes to the NYC General Assembly donation page.

I can’t stress enough how important solidarity acts like this are.  Don’t use #OWS as an opportunity to fundraise for yourselves.  Offer direct support.  Then also add that the occupation is connected to the concrete policy proposals that your organization has been organizing around.

We’re in an exceedingly rare moment right now with #ows.  I don’t know what comes next, exactly.  There is no clear endgame.  It’s an exciting time, though – one in which terms like “cultural zeitgeist” seem not-so-overwrought.  Progressive organizers, activists, and organizations should all draw upon and participate with the #ows crowd.  In so doing, it’s going to be especially important that they “play well with others.”  Chris Bowers and DFA are two positive examples.  Hopefully I won’t need to write a follow-up post that lists and shames organizations that provide bad examples.

 

 

Ontologies of Organizing, Part II: Of Memes and Pressure Tactics

The #occupywallstreet protests are entering their third week, and have started to attract some real attention.  After a police brutality incident last weekend, mainstream media sources have begun paying attention.  Major unions and netroots groups have voted to support the protests, and the core of a few hundred “occupiers” show no sign of leaving Zuccotti Park anytime soon.  A particularly poignant Tumblr site, “We are the 99%,” has been aggregating stories of the genuine carnage left by our current economic mess.  Solidarity “occupations” are cropping up in dozens of cities as well.

I’ve read a couple of interesting takes on this development recently — Micah Sifry and Mark Engler are both worth a read.  Credit where credit is due, the protests are proving to have a lot more staying power than I had expected when I wrote my original post.  Mea culpa, I spoke a bit too soon.  That said, the successes of the event are of a very particular type.  They’re succeeding in spreading a meme, even while lacking a clear demand or clear target.  I think that helps further highlight the competing “ontologies of organizing” that I was discussing last time.  What I wrote then was:

“There are (at least) two ontologies of organizing.  Folks from the Micah White/culture jammer tradition believe that activism is about offering a radical critique of modern society and shining a light on corporate power.  Folks from the Marshall Ganz/community organizing tradition believe that activism is about winning tangible victories that improve people’s lives, change the balance of power, and give people a sense of their own power.”

#OccupyWallStreet has been a success in the activism-as-public-art sense.  The meme has drawn attention, spread, and become something of a touchstone for people wanting to talk about the utter collapse of the American Dream.  The images and language resonate.  The hashtag has gone viral.  That’s a meaningful achievement, one that community organizing can rarely achieve.

The ongoing problems with the action lie in the activism-as-public-process domain.  Two weeks in, they still have no specific demand.  They aren’t applying and escalating pressure on specific targets who can eventually give them what they want.  What would a tangible victory for the #occupiers look like, exactly?  It has been easy for journalists to dismiss and conservatives to caricature, because there is no clear message to maintain discipline around.

What’s more, the action itself isn’t all that large.  I stopped by yesterday in an effort to figure out what I was missing.  From a block and a half away, you’d have no idea that there’s a protest going on.  The park isn’t all that large, and ambient traffic noise means that any coordinated chants are impossible to hear.  Wall Street isn’t being occupied.  The NYSE is neither being shut down nor even inconvenienced.  In the Alinskyite mode of campaign organizing, there’s still plenty to cringe at.  Measured by their own initial benchmarks – 20,000 people, in an ongoing encampment – the action hasn’t performed well.

But that’s the point: activism-as-public-art is tremendously valuable, but ontologically distinct from activism-as-public-process.  It’s a different beast than the strategic mobilization of citizen power that we generally practice in community organizing and political advocacy campaigns.  Its success is measured in different ways.  It has a different social utility.  As such, it doesn’t really matter whether 200, 2,000, or 20,000 people are physically present in Zuccotti Park – either way, they’re not going to actually shut down the NYSE .  The purpose is to inject culturally resonant imagery into the public discourse.  The notion that “young people are rising up, occupying Wall Street itself,” is powerful, regardless of numbers.

The nice thing about cultural touchstones like this is that they can become a rallying point to organize around.  We’re already seeing it a bit, with Van Jones (from Rebuild the Dream) invoking the occupation and relating it to the organization’s mission and goals.  We’ll see more of it soon.  Groups will use the hashtag to argue for the American Jobs Act, or in campaigns to pressure Bank of America.  Yesterday the Progressive Change Campaign Committee tweeted, “BREAKING: CA Attorney General Kamala Harris rejects bank immunity! Join 75,000 @BoldProgressiveshttp://pccc.me/qxTvbk #occupywallstreet.” The lack of any clear demands by the occupiers makes #occupywallstreet a meta-brand of sorts.  And that’s a good thing.  The original occupiers won’t like it, and they’re sure to complain that more traditional, reformist organizations are diluting the message.  But it could prove to be a powerful mixture, particularly if everyone “plays nice” with one another.

#occupyWallStreet is succeeding as activism-as-public-art.  It isn’t putting specific pressure on specific, powerful targets, though.  Ontologically, that’s not what that sort of activism is attempting to do.  Now the other types of activists (the community organizers/activism-as-public-process types) will start building off of that success, using it to advance specific goals and leverage pressure on specific targets.  And that’s when things might get particularly interesting.

Ontologies of Organizing – why #occupywallst was doing it wrong

This weekend was the #occupywallst protest in New York.  Micah White has another post up at The Guardian’s blog, labeling it a grand success.  Others (including myself) are not so sure.  The stated public expectation was that 20,000 protesters would arrive, form a tent city, and hold Wall St for several weeks.  Instead, a few thousand showed up, and most of those left within a day.  The police put up barricades in preparation for the coming anarchy.  Instead, they aren’t even bothering to arrest the remaining protesters (who didn’t bother to get a permit).

I spent the weekend monitoring the #occupywallst twitter stream.  There wasn’t much traffic, particularly for an action drawing support from Anonymous.  It mostly fell into two groups: (1) participants complaining about the “media blackout,” and (2) conservatives making fun of leftist caricatures.  I have a bit to say about each of these.

Regarding the “media blackout,” I’ll come right out and say it: the media didn’t cover this because it wasn’t newsworthy.  The planning and execution for this event were lackluster.  The Theory of Change was nonexistent.

Sometimes, the media actively ignores large-scale collective action.  The protesters in Wisconsin last winter had good reason to be upset — that was the largest sustained labor protest in a generation, and editorial staff decided to focus on Charlie Sheen instead.  But #occupywallst was no #wiunion.  And there’s a lesson in that.

Anarchists and radical organizers have a bit of collective amnesia with regards to the “Battle of Seattle.”  The kids in black bandanas were only a very small part of the coalition that shut down the city in October, 1999.  Their acts of childish violence against a Starbucks may have become the lasting public image of the event, but they were hardly representative.  The bulk of that anti-globalization protest was composed of labor unions, environmentalists, and other organized progressives.  All of those groups have deep traditions based in the community organizing traditions of Saul Alinsky and Cesar Chavez.  The real work of organizing bears little resemblance to the attention-grabbing “culture jammers.”  The real work involves “talking to one person, then talking to another person, then talking to another.”  Organizing is slow, difficult, often thankless, but deeply meaningful work.  There are “rules,” you see, even for radicals.

 

 

#Occupywallst got no coverage on MSNBC.  It got basically no coverage on DailyKos.  MoveOn, the PCCC, Rebuild the Dream, and Democracy for America all had better things to do with their time.  Adbusters’s “Our Tahrir Square” analogies quickly moved from offensive to pathetic.  The netroots and the rest of the progressive movement completely ignored this non-event.

At the end of the day, the failure of this protest animates a deep, longstanding ontological divide within the activist community.  There are (at least) two ontologies of organizing.  Folks from the Micah White/culture jammer tradition believe that activism is about offering a radical critique of modern society and shining a light on corporate power.  Folks from the Marshall Ganz/community organizing tradition believe that activism is about winning tangible victories that improve people’s lives, change the balance of power, and give people a sense of their own power.*

The culture jammers are practicing activism-as-public-art.  The community organizers are practicing activism-as-public-process.  Both have their place, but we rarely spell out the differences.  And they’ll lead you in very different directions.  When culture jammers pretend to be organizers, it turns out poorly.  That’s what happened this weekend, in a nutshell.

As for the conservative hecklers… well, that was to be expected.  Conservative activists spend a lot of time obsessing over radical leftism.  They think that everyone from Paul Krugman to Barack Obama to the Sierra Club is a socialist/communist.  In truth, there are hardly any socialists left within the Left.  When actual socialists and actual communists start screaming for attention, its a bit like spotting a leprechaun.

But I’ve got one thing to say to Michelle Malkin, who referred to the protesters as “Alinskyites:”

You know nothing of [Alinsky’s] work.

 

#occupywallst was not in the tradition of Alinsky.  It lacked a clear target.  It did not leverage power towards a realizable goal.  It did not fit together into a broader strategic campaign aimed at forcing powerful actors to behave in keeping with the goals and interests of a community.

You want to see Alinskyites?  Go to Rebuild the Dream’s Take Back the American Dream Conference, October 3-5 in DC.  That’s where the community organizers will be.  And you’ll find both their goals, their tactics, and their rhetoric a lot harder to caricature.

 

 

 

*Those are the “three principles of organizing” as outlined by The Midwest Academy in Organizing for Social Change

#occupywallst, prepare to be heckled

Apparently, the folks from AdBusters will be descending on Wall Street tomorrow afternoon to, I dunno, create a big revolution.  I hadn’t heard about it in over a month, which doesn’t bode well.  I’m not on the uber-radical listservs, but I’m on plenty of progressive lists.  There has been no publicity beyond the extreme left echo-chamber.

They’ve decided to label it “Our Tahrir Moment,” because they’re, y’know, not very classy. (Egyptian activists spent years risking their lives in organizing protests that set the groundwork for Tahrir.  Adbusters has written a few blog posts, created an independent website, and pre-announced that if they fail,” it’s MoveOn’s fault!”  The analogy offends my sensibilities, I’ll admit it.)

One new addition is that Anonymous has apparently  decided to participate in this thing.  My official academic stance on Anonymous is “I don’t understand this and it is analytically fascinating.”  So who knows, they could make it interesting.  Anonymous tends to pull off big collective actions that I assume won’t/can’t go anywhere.  Color me curious.

Nonetheless, I’m going to go out on a limb and suggest that Micah White et al’s more-radical-than-though event will be an utter flop.  They’re claiming 20,000 people will show up and stay there for multiple days.  I really, really doubt it.  And in advance of his public announcement that it’s because of “Clicktivism,” I’d like to once again point out that (1) organizing is hard and (2) there is no evidence that this crowd is any good at organizing.

I plan on stopping by the event tomorrow.  Not to participate, but to watch.  Follow me on Twitter at @davekarpf if you want to read my livetweets (which will likely be quasi-heckling).  And I’ll also post some sort of a writeup or reflection to shoutingloudly next week.