How to Fight the Super DMCA...
and Win

Douglas Barnes, EFF-Austin
       

Introduction

Understanding the Legislative Process

Building an Effective Anti-SDMCA Coalition

Participating in the Legislative Process

Working with the Media

Acknowledgements

    

Building an Effective Anti-SDMCA Coalition

Although national organizations can provide very useful support in opposing the SDMCA in your state, local leadership is essential.

Many types of people strongly oppose the Super DMCA laws: the computer and consumer electronics industries, some segments of the telecommunications industry, civil liberties groups, consumer groups, technologists, legal academics, librarians, and any ordinary person who might want to connect a communication device to a communication service without fear of jail or bankruptcy.

As a citizen lobbyist, you can provide a focal point for opposition to the SDMCA in your state.

Drawing from these areas of interest, an effective opposition coalition needs people to perform a variety of roles within the coalition:

Local vs. National

An inescapable fact of state politics is that legislators respond better to individuals, organizations, and industries that are either based in the state or have a significant connection to the state. It may seem parochial, but legislatures are inherently parochial places.

When recruiting coalition members, keep this fact in mind. When participating the process, you need to put the local face forward as much as possible.

Issue leadership

One or more people need to take on the initial tasks of organizing the opposition effort and putting together the coalition. Leadership in these situations isn't something that you're anointed with, it's something you do. Despite the presence of experienced industry and public interest lobbyists who should care about this issue, it may be you -- an ordinary citizen -- who ends up getting the ball rolling in your state.

In addition to understanding and caring about the issue, issue leaders need a reasonable amount of technical savvy, good social networking skills and a healthy amount of chutzpah. An issue leader does not need to be a professional lobbyist or even a particularly slick or smooth public speaker. While a more experienced issue leader is less likely to be dismissed or lied to, this is offset by the energy and fresh approach that someone new can bring to the role. Moreover, experienced lobbyists have long-term relations with staffers and legislators that can make it difficult to take a strong stance on an individual issue.

How to become an issue leader

Contact the following representatives of the core national public interest groups who are working this issue, to find out if there are others in your state who are actively working on this issue:

  • Fred von Lohmann, EFF
  • Alex Curtis, Public Knowledge
  • Marv Johnson, ACLU

You may want to formally affiliate with one of these organizations or a local chapter, or you may want to create your own, temporary local organization. You may even want to do both. But while it's good to have an organization behind you, or at least an organization name, being an issue leader is mostly a matter of just doing the things described in this document.

What issue leaders do

Issue leaders may need to:

  • Identify and recruit other necessary leaders.
  • Identify and recruit industry group representatives. This would typically be done in conjunction with a national industry organization, but bear in mind that there may be state equivalents of national industry groups that might have greater local influence than the national organization. A national organization, unless it is a major campaign donor and has made opposition to this bill a major priority, will often have less direct influence than a single local employer who will be affected negatively by the legislation.
  • Identify and recruit citizen group representatives and influential individuals.

You may be lucky, and many of these things may already have been done for already. In that case, it's more a question of letting yourself get recruited.

But there is no substitute for a solid grassroots approach to the following:

  • Prepare information sheets and model letters.
  • Visit with legislative staffers and (sometimes) legislators in person.
  • Attend and testify at committee meetings.
  • Create and maintain relevant mailing lists, web pages and wikis.
  • Hold meetings, phone conferences and chats as needed.

Legislative leadership

State legislatures are strange places, with complex and often unwritten procedures, quirky personalities, and unique power dynamics. There is no substitute for experience in this area. Any opposition effort will benefit greatly from one or more "old hands" to provide advice, coaching and introductions.

Industry groups and the state chapters of national civil liberties and consumer organizations have lobbyists who are paid to have just this sort of experience. In addition, friendly legislative staffers, if properly cultivated, can be extremely effective allies. The problem is that the folks who work these issues professionally may be working on dozens of issues simultaneously, and may not be particularly well-informed or passionate on this particular issue. Many such groups have folks at the national level who have the knowledge and passion, but are limited by a lack of local ties and state-specific experience.

How to recruit legislative leaders

The good news is that these old hands are surprisingly willing to help novice citizen lobbyists. The bad news is that you may need to take the advice you get with a grain of salt, particularly when it comes from someone with a potentially divergent agenda in this area.

Once you've decided to work actively to work on this issue, contact the state offices (if any) of the national public interest organizations that are opposed to the SDMCA. Find out who, if anyone, is tracking this issue. Explain what it is you're wanting to do. If there is no state chapter that you're aware of, or if the state chapter's reaction is confused or tepid, try contacting someone at the national level.

Don't be too put off if the people you contact don't immediately rush to your aid. These are often busy people, and you may need to prove that you're going to stick with it for a while before they start giving you advice. Public interest advocates are frequently contacted by very enthusiastic people -- who they never hear from again. As much as we all hate to make mistakes, there's nothing like getting out there and trying your best to inspire the kind of coaching and assistance that you'll need to be successful as a citizen lobbyist.

How legislative leaders can help

There are numerous ways that legislative leaders can help issue leaders, even in small doses:

  • Bill monitoring. The motion picture industry has typically encouraged its sponsors to introduce these bills with little fanfare, presenting them as "minor updates" to the existing theft-of-service or cable TV piracy statute. Therefore it is critical to enlist the involvement of folks who are already systematically monitoring legislation or paying a service to do so. This can become particularly important towards the end of a session, when bill language can re-emerge in the form of an amendment and quickly pass with little or no opportunity for further comment.
  • Message tuning. It is very easy for those immersed in the legal and technical aspects of this issue to forget that their concerns are potentially obscure and confusing to "ordinary folks," like state legislators. Experienced legislative leadership can provide feedback on your message, can point out legislators who might be particularly receptive (or not), and can identify which interests groups will be most likely to influence which legislators.
  • Tactical advice. Explain how the committee process works, how to organize oral testimony for a committee, how to submit written testimony, the points in the process where bills are most vulnerable, how to influence bill analyses and fiscal notes, and when points of order can be used to advantage,
  • Power dynamics. Identify sympathetic legislative leaders who may be able to influence other legislators. How to identify the relative strength of supporters and opponents of the bill.
  • Vote counting. Local folks with legislative experience will know the relative probity of various legislators and can identify who is likely to remain constant and who will need frequent attention to stay in the fold.

Legal leadership

The bill will almost certainly be introduced as a modification to an existing statute or statutes. These statutes will typically be part of a larger body of law that may provide explicit definitions. Definitions and concepts used in the legislation may also already be worked out in past state appellate cases. Even what seem to you to be relatively straightforward words may have been given, or may have acquired, very specific and even counter-intuitive meanings.

This becomes even more dangerous when changes are proposed, and there is limited time to evaluate the consequence of the changes. It is a time-honored tactic to offer extremely narrow or even meaningless changes that appear to address your concerns, but really don't. Our opponents are masters of this approach, and have already been able to use this tactic to fool some very experienced people who really should have known better.

Writing or modifying legislation is something like programming a computer that hates you, with a very, very slow test and debug cycle. This has two implications. One is that technical people, particularly programmers, are often remarkably good at interpreting and even writing statutes. It also means that they would be complete idiots to try to do it without working closely with people who do it for a living.

What the issue leadership brings to the table in this context is an understanding of the technology, along with the carefully-honed paranoia that comes from being at the receiving end of a lot of unfortunate legislation advanced by special interest groups such as the motion picture industry. Legal leadership can act to both focus and limit this paranoia by providing a the tools and framework for understanding how far various parties will be able to push the new language once the legislation is enacted.

While national organizations have some very smart lawyers working for them, they are no substitute for effective local legal expertise. Even if you can't find someone with expertise in that area of law within your state, it can be almost as good to find a local attorney or law student who is willing to dig in and quickly get up to speed. The key is focus -- there are a lot of states, and for your opposition to be effective you need someone who is, or is willing to become, an expert on the laws in your state.

It is extremely important for issue leaders to work with legal leaders who are passionately committed to the issue. Industry group allies may also have local lawyers on retainer, but they will typically be focused narrowly on the immediate interests of the group that pays them. They're also very busy, darned expensive, and may not have particular expertise in this area, or the time and budget to acquire it.

Industry group representation

A significant number of groups have come out in opposition to the SDMCA. However, that message may not have been effectively received at the local level.

As a citizen lobbyist you can help national industry groups by making it clear to their local affiliates that they are not all alone on this issue, and that it's an issue that really does affect them in your state.

Limited allies

In addition to interest groups whose interests are squarely affected by the sheer overbreadth and technology-control aspects of the SDCMA, there are groups whose interests are affected, or offended by, particular elements of the MPAA's model legislation. You may not get all of these elements when the legislation is introduced to your state, but despite the increasing setbacks they are facing, there is no indication that the MPAA has become appreciably more humble or cautious.

  • Tort Reform Groups. During the last session in Texas, the SDMCA was being considered at the same time as sweeping tort reform legislation. While tort reform is marketed as broadly beneficial, it is largely backed by business groups. Unsurprisingly, the particularly outrageous civil penalty provisions in the SDCMA struck a negative chord with many conservative, business-oriented legislators. At the first hearing in the House Regulated Industries Committee, when I pointed out the provision for one-sided attorneys' fees, the chair -- who had seemed determined to pass the bill out of committee that night, but had apparently not read it -- became visibly upset and the bill did not pass out of committee for some time, and then only after significant amendment.
  • Prosecutor Associations. The MPAA was very sloppy in adapting their model bill to the structure, format and language of the Texas Penal Code. This was commented on rather unfavorably by the representative from the Texas District and County Attorneys' Association, a group that takes a somewhat proprietary interest in keeping the Penal Code clear and consistent. While the MPAA may not make this mistake in your state, it is a good idea to stay on the good side of these associations by making sure that any amendments you write don't fall into this trap. Note that even in Texas -- the epitome of a law-and-order state -- the TDCAA remained strictly neutral on the SDMCA, and seemed decidedly skeptical about whether there would be much interest in pursuing prosecutions under it.

Uniquely influential individuals

As you're building your coalition, be on the lookout for:

  • Anyone you know who has a personal relationships with any state legislator.
  • Major individual campaign contributors. Brainstorm ways in which the legislation might adversely affect their interests, then contact them.
  • National, county or city political leaders whose background or political stance make them potential allies.
  • Law professors who can help analyze the bill, and can testify that the bill will have unfortunate consequences.
  • Computer Science professors and other academics who can testify about how the bill could interfere with their research.

Citizen/constituent

In Texas we did not have time to systematically organize ordinary citizens and constituents and direct them to contact key legislators. Through a patchwork of emails through national organization and blogging, we did get some people to call in and write letters, but it could have been far more effective.

The national and state organizations are currently working on ways to provide support by creating tools to organize this better and build a grassroots base that can be applied to this and similar issues.