The unpolished draft of the op-ed written for the Guardian
There
is no weapon on the planet more powerful than speech. In recent years, the digital revolution has
led to new and unique ways for people to express themselves. Speech has flourished around the globe, and
brought the world closer together. As a
lawyer and as someone who promotes the advancement of individual liberties, I
was fascinated by the advent of online speech, and then the advent of online protest.
While
affixing your e-signature to an online petition is a new and somewhat direct
way to “petition your government for a redress of grievances,” I am most
concerned with advocating for more immediate and effective manners of
protest. Accordingly, I was quite
interested in December 2010 when the hacktivist collective Anonymous took to
the internet to voice their displeasure with PayPal over their part in the
banking blockade of Wikileaks. A
reported 10,000 protestors around the world voiced their displeasure with
PayPal by using a protest method known as DDoS.
DDoS is the functional equivalent of hitting the refresh button on a
computer repeatedly. With enough people
refreshing enough times, the site is flooded with traffic and slowed or even
temporarily knocked offline. No damage
is done to the site or backing computer system, and when the protest is over,
the site resumes business as usual.
This
is not “hacking.” It is protest. It is speech.
True,
customers of the site are temporarily inconvenienced, but democracy is often
messy and inconvenient. Moreover, to hear the voice of your fellow citizen for
a moment should always be worth slowing down for. Exposure to new or differing views enriches
us all. Such was the case with the 2010
PayPal DDoS protest.
Or,
at least, it was until the United States Government decided to serve 42
warrants and indict 14 protesters. While
protest crimes have typically been seen as tantamount to nuisance type
behavior, like trespassing or loitering, these were different. The 14 PayPal defendants, some of whom were
teenagers when the protest occurred, find themselves looking at 15 years in
federal prison. For exercising their
free speech rights. For redressing their
grievances to PayPal, a major corporation.
For standing up for what they believed was right. Instead of facing a $50 fine, like one would
face for traditional protest crimes like a sit-in, the PayPal defendant’s
freedoms are in real jeopardy.
To
address this situation, there was some more traditional, yet still-modern
speech aimed at the White House. An
online a petition has been launched asking that DDoS be treated as speech. I wholeheartedly support this concept. Being mindful that all protest must be
reasonable in time, place and manner, I believe that there is room in
cyberspace, indeed in the world, for this type of protest activity.
The
example used above, that of the PayPal protest, is again apt to analogize why
DDoS is speech. Just like civil rights
protestors who went to the Woolworth’s lunch counter in the segregated American
South of the 1960’s to seek a simple meal, people went to PayPal to express
their desire to make a donation to WikiLeaks. In Woolworth’s the protestors made plain their
goal: “If you serve me a meal, I will eat it, pay for it and then I will leave.” This simple concept was lost on the Jim Crow
South. And so protest became necessary. Certainly this situation is a lesser
evil. No one suggests it is not. But the analogy is apt nonetheless. Thousands of PayPal protestors said, via
their protest speech in DDoS form: “I want to make a donation to WikiLeaks,
I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll
feel fulfilled, everyone wins.” But
alas, PayPal, and their parent company eBay were not in the win-win business. They were in the censorship business. Censorship is not something Anonymous suffers
lightly. PayPal will take donations for
the Ku Klux Klan, other racist and questionable organizations, but they won’t
process donations for WikiLeaks. So it
came to pass that thousands of displeased people around the globe voiced their
displeasure via a DDoS protest. All the
PayPal protesters did was take up some bandwidth. PayPal claimed – almost as a cry of victory –
that their site never even went offline.
In that example, DDoS was used as an almost pure form of protest
expression. Accordingly, it was speech,
it should absolutely be recognized as such and protected as such. The law should be changed.
The
Computer Fraud and Abuse Act is being used to stifle new and creative forms of
online expression. This type of harmless
creative protest should be encouraged.
Our nation was built upon the principles of free speech. If the founders of this great nation saw the
abuses of the laws as applied to these minor protests I think they would be
shocked and offended.
Our
best and brightest should be encouraged to find new methods of expression. Direct actions in protest should be
encouraged, not stifled. The dawning of
the digital age should be seen as an opportunity to expand our knowledge and
collectively work together to enhance our communication. Government should have the greatest interest
in promoting speech, especially unpopular speech. If new and contrary methods of speech became
mainstream, they would need no protection.
The majority, the corporatocracy and the oligarchs are, no doubt, displeased
by dissent. Such is the nature of
dissent. When the world becomes perfect,
no one will ever have need to protest.
Until then, the Government should never be used to stifle the new and
creative – not to mention effective – methods of speech and expression. Since the PayPal prosecution there has been
no DDoS protests on that scale. Speech
has been chilled.
Supreme
Court Justice William O. Douglas said: “Restriction of free thought and free
speech is the most dangerous of all subversions. It is the one un-American act
that could most easily defeat us.”
Toward that end, let’s begin a conversation about carving out some room
for DDoS to be seen as protest speech deserving of First Amendment
protection.
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