I’m working on a new piece about how criminal law deals with technology creators, especially when innovation leads to a certain lawlessness, as has occurred with the so-called Hacker Ethic. I’m posting some thoughts derived from Steven Levy’s book Hackers, to solicit any feedback the Internet might have to offer.
To understand the modern opposition to technologists as criminals, we must return to the dawn of the computer age, when a distinctly anti-authoritarianism view of technology emerged: the hacker ethic. In the early 60s, student programming hobbyists (later called “hackers”) at Massachusetts Institute of Technology developed a unique culture hailing the virtues of access to computer technology and freedom of information. These early hackers believed deeply in the ability to improve life through technology and resented barriers and bureaucracies that hindered their hands-on exploration and betterment of the world around them. This resentment came, in no small part, from contempt for the haughty guardians of MIT’s million-dollar mainframe IBM computers, the so-called “Hulking Giants,” from which they were prohibited with tinkering. Even computing time on less-valuable machines was precious, and the hackers were, in the early days, forced to scavenge time from “Officially Sanctioned Users.”
This mentality led to a veneration of decentralized experimentation, and a certain “willful blindness” to what hackers saw as inefficient restrictions. In mischievous pursuit of exploration—though not malice—they probed flaws in MIT’s phone system, intentionally crashed the “Hulking Giants,” and ignored prohibitions on tampering with computer hardware. Having no concept of property rights, they often broke into university labs at night to sneak components, without ever considering it stealing. But in the same spirit, they shared their software creations without thought to passwords, royalties, or licenses, repeating their mantra that “information should be free.”
As the computer revolution spread, so did the hacker ethic. It first jumped coasts, where Californian “homebrew” computer enthusiasts, with an undercurrent of post-hippie activism, collaborated to bring computers to the people by hacking hardware and sharing software, even proprietary applications like Atari’s Pong. As the market for personal computers grew, some software creators began to complain; a young Bill Gates, in a widely circulated open letter to homebrew hackers, accused them of stealing. Although the hackers initially condemned Gates’s letter, many realized over time that selling computers and software could be immensely profitable, and a few, like Steve Wozniak with Apple Computer Company, used their hacker skills to become multi-millionaires. Eventually, the hacker ethic would be credited as inspiring the minds behind tech giants like Microsoft, Google, and Facebook.
Yet even as some hackers were becoming successful entrepreneurs, others entrenched themselves in the movement’s anticommercialism and disregard for property rights. This mentality was often expressed in noble (and perfectly legal) pursuits like Richard Stallman’s fervent evangelism about open-source software. But it also gave birth to a certain lawlessness that would land next-generation hackers in court and mar the term “hacker” with the connotation of “digital trespasser.”
Many times, this lawlessness took the form of antipathy toward copyright restrictions. A strong coalition of media companies and lawmakers, have pushed back on online filesharing, which they view as a significant threat to business. After a failed, high-profile attempt to criminally punish MIT student David LaMacchia for maintaining an online bulletin board with copyrighted software files, these forces successfully implemented strong prescriptions, embodied in the Digital Millennium Copyright Act, against the distribution of technology designed to circumvent Digital Rights Management technology. But peer-to-peer filesharing grew despite these efforts, propelled by hacker-led services, like Napster, many of which were eventually crushed by civil infringement lawsuits. These services typically tried to defend themselves on the grounds that they could not be liable for the infringing acts of their users merely by providing technology. But in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Supreme Court rejected this argument concluding that “secondary” copyright infringers can be liable as long as they intended to promote infringement. This decision paved the way for criminal copyright actions against services like link-listing website NinjaVideo and cyberlocker Megaupload, both of which prosecutors alleged aided and abetted copyright infringement (see my forthcoming article on this topic).
Filesharing companies aren’t the only type of computer technology company to face criminal scrutiny. Programmer Robert Stuart was indicted in New York for violating a state law against gambling promotion by selling online-sportsbook software, even though his software is legal in other jurisdictions and he never accepted an illegal bet; his crime, if anything, is willful blindness to his customers’ activities. Other software providers have faced charges of aiding and abetting criminal activity by enabling users to generate spam emails in violation of the CAN-SPAM Act, facilitating child pornography and terrorism through distribution of digital currency, and allowing circumvention of copyright protections and paywalls for Internet service.
Hacker progenies also have pushed to its limit the notion that information should be free. In on ongoing, high-profile case, army intelligence analyst Bradley Manning was found guilty of severe criminal charges—and was charged (though found not guilty) of the capital charge of “aiding the enemy”—for leaking classified documents to the website WikiLeaks, which published them online. Another prominent, and controversial, example is hacker Aaron Schwartz, who committed suicide after his arrest and prosecution under the Computer Fraud and Abuse Act for using a computer program to download academic articles, which prosecutors alleged he intended to distribute, from the online repository JSTOR. The controversy surrounding both of these situations underscores the often fine line between hackerism and crime.
The Computer Fraud and Abuse Act, widely criticized as outdated, has caused particular trouble for hackers. Along with Aaron Schwartz was Andrew “weev” Auernheimer, found guilty under the Act for his role in discovering and informing the media about a flaw in AT&T’s security system. An appeal is ongoing, and many legal scholars believe he has a good chance of overturning his conviction.
I will continue to blog about this issue as I continue to research it. My goal, along with my coauthor, is to draw broad guidelines for courts to apply when addressing conspiracy and aiding and abetting charges brought against technology creators. Any thoughts?