Congressman Darrell Issa's Call to the Internet's Right Side

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The House member makes the case that a conservative approach is the best hope for keeping the Internet full of win.

Congressman Darrell Issa/Flickr

On the national stage, California Republican Darrell Issa has been known for a curiously colorful variety of things. As chairman of the U.S. House of Representative's lead oversight committee, Issa, has been the thorn in the Obama Administration's side over the "Fast and Furious" gun-walking operation that found Attorney General Eric Holder in congressional contempt and how the Department of Energy's billions in stimulus dollars are being spent. It was six-term, 58-year-old Issa who was the responsible for not letting Georgetown law student Sandra Fluke testify at that contraception hearing. He's also the entrepreneur who made a fortune in car alarms and other electronics, money he used to fund the 2003 recall of Governor Gray Davis. It is, rather famously, Issa's voice that says "Protected by Viper...Stand back!" in the '90s TV commercials.

But in the tech world, the congressman from north of San Diego is known for something quite particular. Darrell Issa emerged during this winter's debate over the Stop Online Piracy Act as a politician willing to question Washington dogma about how you go about protecting copyright online. Issa and a suddenly swelling band of allies asked tough, tech-savvy question about what the legislation would do to the Internet's workings: the effect of website blackouts on the domain-name system, for example, and the liabilities the bill would place on sites like YouTube and everyday blogs to patrol for infringement. Darrell Issa sounded the alarm over SOPA. The Internet came running.

Post-SOPA, Issa says he's eager to keep attention on how Internet policy gets made in Washington. He recently changed his Twitter avatar from a cartoon cop to a superhero in the shadow of a "cat signal," the digital alert of the brand-new Internet Defense League, a coalition of activists and web companies that sports the tagline, "Make sure the Internet never loses. Ever." In an interview, Congressman Darrell Issa makes his case for why a conservative approach is the best hope for keeping the Internet full of win.

Before SOPA put tech policy so much in the news, Democrats and liberals arguably carried the mantle as champions of the Internet in Washington. But that seems to be shifting, with new talk of a conservative vision for Internet policy.

Issa: The short and easy to understand answer for anyone is that conservatives have long staked out the ground that government does best what it does least, and when it comes to the Internet the same has to be applied.

Overregulation can and would undoubtedly destroy creativity, as would certainly picking sides, winners and losers, whether it's overregulating with net neutrality -- which is essentially taking by government fiat through the administration and the FCC [Federal Communications Commission] -- or the attempts legislatively with SOPA and PIPA [The Senate's Protect IP Act] or TPP [The Trans-Pacific Partnership, a multilateral trade agreement currently being negotiated], where the administration may in fact have a considerable impact on movement over the Internet by international agreement.

On all of these, conservatives would say, where is the pressing absolute need? Where is the constitutional obligation and right? And weigh that against personal liberty, the First Amendment, and so on.

Let's take the Digital Bill of Rights you put together with [Oregon Democrat] Senator Ron Wyden. One critique in conservative corners is that you're dabbling in "rights inflation." We already have rights under the plain ol' Bill of Rights, and when you talk about things like "openness" and "accessibility" it suggests that there has to be some for government to ensure those rights. What does "Digital citizens have a right to access the Internet equally, regardless of who they are or where they are" mean, for example, if it doesn't mean government advancing some sort of broadband policy?

Issa: Equal access and being paid for by somebody else to get access at your station are two different things. I read the Digital Bill of Rights on equal access to be about an equal opportunity to access it, not some sort of "We'll guarantee you 256k to the home," as they did in Korea.

It doesn't change the fact that Republicans and Democrats have supported broadband rollout, some subsidies. But a better example would be that there is some regulatory history over ensuring that there is both access that you pay for and competition to ensure that you don't overpay when it comes to telephone, Internet, and, for that matter, television. All of that has a long bipartisan history.

So "accessibility" could mean bringing down broadband costs through free market mechanisms?

Issa: Exactly. If there's not competition, why isn't there competition for what should be productive and lucrative opportunities to roll the Internet out by fiber, by cable, by powerlines, over the air? All of those sort of things, government has a limited role.

But, about "rights creep," people have made that point: "Isn't this already covered?" Well, the answer is, it's already stated, but many of the things the government has tried to do would make one believe that it's stated but not understood. The brilliance of the First Amendment -- of the Constitution, for that matter -- is that it's so short. The one downside is that because it's not explicitly said in terms that they probably wouldn't even have said 200 years ago if they'd known them, then people say, "Well, it's not in there."

I think it's in there. But delineating it with multiple statements is a great way for people to understand that these are rights they already have.

Let's go back to SOPA. There's a public view of how the situation played out once it was heating up, but what was happening before SOPA got mass public attention?

Issa: The way that it was presented in the House was that it was a fait accompli. This was a done deal. That it was well thought out. That SOPA was really similar to what had not been for most senators controversial. [Introduced in May, PIPA had dozens of Senate co-sponsors by the time SOPA had its sole hearing in mid-November.] They were counting on inevitability in order to say, "Well, we'll take small amendments if you have them but pretty much, you see the bill as it's going to be."

My legislative director brought it to me. I looked at it and I couldn't find a way to fix it. That made it a little easier. It was so fundamentally bad in its approach that I couldn't accept trying to amend it to make it work. Even if all my amendments had been approved, it still would have been a bad bill.

I found like-minded people on both sides of the aisle that were offended by the taking, if you will, of portions of Internet freedom: forcing obligations on companies to do things, and making them very liable under SOPA for both civil and potentially even criminal charges if they didn't do enough for somebody else's property.

It personally offended me. In the non-Internet world, we understand that it's not your job to lock somebody else's front door. SOPA was not only making it your job but making you very suable by somebody who said that you didn't do it -- without their even proving that it was their front door.

It's easy to make the argument that SOPA was crudely written and so broad-brush that the coalition that popped up to oppose it made sense because, from a certain perspective, it was blatantly offensive.

Issa: You're absolutely right. If we had had a lot of consultation, a lot of people weighing in to mend it, the bills might have actually gotten passed and still been awful.

One of the good things was that it offended so many people that otherwise might not have been interested in the most core portion, which was essentially forcing others to regulate or to slow down, or to deal with piracy that they were not a participant to. For me, that was a core element. But at the same time, potentially bringing down the Internet with denial of service, offended a lot of people for whom, basically, cybersecurity was basically all they were concerned about.

So the offense is that site owners being required to monitor what happens on those sites is them suddenly having all these new regulations being imposed upon them?

Issa: A lot is being said today about the president's health care law because it's been held constitutional, if you will, that you must buy insurance. I'm not going to debate that right now. But certainly saying to businesses that you must do this, this, and this, because somebody else wants you to do it--you begin asking, when did that become my responsibility? You can imagine trying to tell everyone who hosts one gigabyte of data that they were going to have to analyze and be responsible whether there was copyrighted software in it and whether another entity had rights to it. It was a broad overreach.

And, of course, I was offended by the Justice Department being basically empowered with a whole new division, in addition to essentially tying up the Article III courts [i.e., standard U.S. federal courts, Supreme Court and its lower courts] with a new set of rules.

If you look at the coalition that is growing up around the SOPA/PIPA backlash -- your odd-couple partnership with Senator Wyden, the Declaration of Internet Freedom authored by Free Press and others that you've signed onto -- you have to wonder, is it really extensible? You were on the Internet Defense League's kick-off call this morning where the representative from the group Fight for the Future entertained the idea of triggering the new online "cat signal" over the Cyber Intelligence Sharing and Protection Act. But you've been supportive of CISPA. Facebook has, too. So what does this coalition have to hold together around?

Issa: To a certain extent, the coalition we're building is sort of like an emergency broadcast channel. It's only if the tornado is coming towards your house or your region that broadcast is important, but at least you let everyone know that it's occurring.

In this case, not every time that there's a drumbeat will it be universally something someone is going to weigh in for. But there will be two times people will weigh in. They'll weigh in when it impacts their business model or their ambition. And they'll weigh in when they believe that if they don't defend a particular entity's liberty, that next it could be them.

The latter is very important. A lot of time people don't focus on legislation, regulations, even executive orders unless somebody says, "Oh, this affects our current business model." I think what we learned from SOPA and PIPA was that a lot of the people weighing in were not necessarily going to be directly affected by the law as it was written. But they could see where they could be next. It's the old expression from Churchill of "feeding the alligator, hoping they'll eat you last." It's not a particularly good strategy.

What I think you heard this morning is, yes, I think that there are some sensible and necessary things we need to do to protect the commerce on the Internet. We need to protect the Internet's ability to not have people taking it down, to not have spoofing and spamming.

When you look at cybersecurity, I once had somebody say, "Well, I've taken my own measures." And I said, "Oh, really? So, if all of the power grid goes down, how good are your measures?" Ultimately cybersecurity includes those communications that tell all our power companies how to coordinate how much they put into the grid. And of course, immediately they say, "Well, we have to do it for them." But for them it's still just one Internet.

And that doesn't speak to a need for centralization -- that because the Internet is a networked space, there's a government role for keeping things running?

Issa: There is a government role, and I don't think Senator Wyden or myself or anyone else even on the other side would object to there being a government role. But at least from a conservative standpoint, as I said, government does best what it does least.

We've done very little on the Internet. Yes, when IPv4 was envisioned, when [computer scientist Vint] Cerf came up with it, it was because we realized that there needed to be a number string long enough to take care of all the participants. Of course, now we're dealing with IPv6 because we ran out of numbers. Okay, somebody has to make that decision, and it's either going to be either an NGO acting kind of like a government--you know, a standards organization, and there are many of them involved in the Internet--or in some limited cases, it's going to be the U.S. government.

You know, nobody can retaliate against a denial of service attack originating from China as well as the U.S. government can, if they choose to. My greatest concern is that government won't do what only it can do to protect the Internet. It will spend a lot of time deciding whether or not we can have gaming on the Internet, what is pornography, what is this, what is that. It's best for you to be a libertarian who believes in strong national defense. It's that combination of saying that we have a responsibility to look outward and that we don't want anyone disrupting the Internet.

But what's on the Internet, if it doesn't disrupt, it's none of our business. It's that combination of freedom of speech and a sense of privacy that drives me to say that if I let government in, they'll probably affect both of them adversely.

Where does net neutrality fall, then? That it's not core to the Internet and therefore not the government's role? Or just that regulating for an open Internet isn't the Federal Communication Commission's role?

Issa: I think the FCC exceeded its defined authority. If they wanted authority, they should have asked for it, not taken it. I feel very strongly about that. They've come in as a regulator rather than simply issuing, if you will, a standards warning.

I don't want to have my traffic slowed down so that a competitor can get ahead of me. We understand that. But the FCC did it in a way in which they view it as an opportunity to regulate and regulate a lot. I don't think Congress gave them that authority nor should have.

Two final quick hits. First, what's the reaction you get when you go to Silicon Valley and talk tech policy?

Issa: It's always very favorable. They're usually a little surprised to see a Republican, although a number of companies have known about my work since before I came to government, when I was in the consumer electronics industry. But to a certain extent, it's usually surprise.

And what's the reaction among your colleagues on the Hill when you talk tech policy?

Issa: [Long pause.] It's interesting, because I have the good fortune that I think a lot of them do like and respect the fact that I put time into it and therefore will ask me questions. At the same time, they're also very surprised to find out that the tech world needs us--and it needs us particularly to prevent the red tape and regulation that other industries have faced for decades.

And [tech companies] are beginning to realize it. In other words, the liberalism of the Internet is starting to realize that, that's fine, but you don't want to be regulated--therefore you're going to have to go to those who are your allies on both sides of the aisle that want to prevent excess or unnecessary regulation.

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Nancy Scola is a writer based in New York. She has written for New York, Salon, and Seed, and is a frequent contributor to The American Prospect.

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