Wednesday 19 October 2011
These are the people who are going to be brought before an American judge and have their fates determined by a jury of their American peers for using their American, constitutionally granted, and judicially defended right to free speech. At the present time, The United States of America has decided that it is willing to prosecute these defendants on behalf of PayPal, a corporation that handles financial transactions across state lines (in turn qualifying api.paypal.com as a Protected Computer under 18 U.S.C. § 1030) for an “attack” that took place against their servers. With this, the United States government, in conjunction with PayPal, has chosen a few members of the Anonymous Legion to scapegoat, in the name of…law and order? Of course not. More likely to send a message to Anonymous and to any other would be digital activists.
The alleged crime is use of a traffic generation tool in order to disrupt service for PayPal, or in legal speak “to commit Intentional Damage to a Protected Computer.” While this particular charge being levied is laughable to anyone with a basic understanding of networking, the type of tool used, and an idea of what damage to a computer actually consists of, it is a felony charge and carries up to 15 years of jail time and up to a half a million dollar fine. Surprisingly, in the indictment itself, the Grand Jury acknowledges that the “attack” itself was a direct response to the actions taken by PayPal’s effort to, in the words of the community, economically strangle WikiLeaks. Even in this statement, it demonstrates that this response from Anonymous is most definitely a form of digital activism. So this begs the question, can this form of digital activism be considered protected speech? To understand protected speech we must first understand that there has been an evolution of free speech, from flying red flags, to wearing black armbands. Texas v. Johnson, 491 U.S. 397 (1989) burns the brightest in recent history, pun intended.
The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a “whites only” area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-142 (1966); and of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U.S. 58 (1970).
People everyday are called on by interest groups and President Obama to flood the switchboard at Congress, in order to be heard, to participate, to ensure that every person has a method of expressing themselves and their beliefs to their elected leaders without fear of repression by their government. When was the last time you heard of someone getting arrested for flooding the congressional switchboard?
In an age where we have all become nameless, and our main form of identification is a dotted quad and a handle, what does it mean to speak in the 21st century?
What better form of communication than TCP/IP. The protocol itself was created to ensure messages are somewhat reliably transmitted around the nation, even during a nuclear strike. But are we limited to emails, forums, and blog posts? Or are our voices evolving into to something more? These defendants were not spreading malware, hacking servers, or even damaging the systems themselves. They simply were expressing an opinion as loudly as any protester in a park, signer of a petition, or our beloved congressional switchboard caller. While the speech that was used in this particular instance might be slightly different than the examples above, it just shows how speech on the internet is evolving and how right Justice Brennan was when describing this metamorphosis. These members of Anonymous clearly were making a statement and publicly shaming PayPal in front of their shareholders and the world on behalf of those of us who value the freedom of information.
This shaming message appears to have been heard loud and clear by PayPal while events were unfolding as well. PayPal itself has conceded there was no damage and minimal delays in service and while they refuse to admit Anonymous had anything to do with it, in the end they were convinced that they should release the funds to WikiLeaks. Not only did PayPal and WikiLeaks hear them – we all did.
In more recent history, nearly unanimous Supreme Court decisions have determined that there is very little online that is not protected by free speech. So that leaves us only with “Damaging a Protected Computer System.” But the question is, why are these 14 activists being held and charged if no systems were actually damaged according to PayPal themselves? Some might say that we need to make an example out of them. Why? For making their voices heard in a scream of protest against suppression of information? It is an embarrassment that we are barely allowed to gather in public without being, at best, herded like cattle into controlled areas for peaceful protest, or at worst beaten, zip-tied, and then jailed. What other forms of protest are we left with? The best tool we have right now to influence change is right in front of us. Voluntary distributed denial of service is the new digital sit-in.
Those of us who understand how the digital age is modernizing law can see where these battles are going and can see how this battle will be won…in the courtrooms of the United States of America.
Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” — JS Mill
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