April 5, 2010Professor Paul Drake, Senior Vice-ChancellorUC San Diego9500 Gilman Dr.La JollaCA 0065Dear SVCAA Drake:The UCSD Faculty Coalition has learned that one of its members, RicardoDominguez (Associate Professor, Visual Arts Department), is being investigated for anartistic project (“Virtual Sit-In on University of California Office of the President”) hedeveloped on March 4, 2010 in conjunction with the recent student protests on campus.Your office has informed Professor Dominguez that you are attempting to determine thelegal grounds necessary to file criminal charges against him. These charges, if successful,could lead to the revocation of his tenure at UCSD or other disciplinary proceduresthrough the Committee on Privilege and Tenure. Two detectives from the UCSD PoliceDepartment (Officers Michael Britton and Garrett Williams) have since interviewedProfessor Dominguez (on March 30, 2010) and made it clear that they were concernedwith whether or not he had violated any city, county, state or federal laws, with the goalof turning their findings over to the San Diego City Attorney’s office or the Californiastate Attorney General.We hereby inform you that the Faculty Coalition views these developments withgreat alarm and is prepared to oppose them in the strongest possible terms. We areparticularly concerned because of the implied attempt to criminalize an artistic practice,“Electronic Civil Disobedience” or ECD, which is central to Professor Dominguez’s roleas a researcher in Visual Arts at UCSD. This attempt is evident in the initialdocumentation of the complaint, which erroneously claims that the March 4 projectinvolved the use of “botnet” code and “zombie” computers (see e-mail from ElazarHarel, March 5, 2010, “Denial of Service Attack Against UCOP Website”). Thismisunderstanding is unfortunate, as the distinction between ECD and a “classic Denial of Service attack” (e-mail from Paul Weiss to David Ernst and Nathan Brostrom, March 4,2010), is absolutely central to Professor Dominguez’s work, and was discussed in somedetail in the referee letters for his tenure promotion file (approved by your office in2009). As you note in your notification letter of March 30, 2009, “Professor Dominguez .. . has been a defining figure in the migration of performance art from physical space tovirtual space. Professor Dominguez’s work, first with Critical Art Ensemble and thenwith Electronic Disturbance Theater, has been highly cited, and he has been invited tolecture on the work across a host of important international venues . . . The esteemedstatus of Professor Dominguez’s field-defining work has been duly noted by the external

referees, who include major international intellectuals working in performance art, newmedia and globalization”.The central importance of ECD, and a related practice, “Electronic DisturbanceTheater,” to Professor Dominguez’s research is referenced repeatedly in those samereferee letters. Thus, Stephen Duncombe of New York University notes that ProfessorDominguez “is one of the seminal figures in the cross-over world of activism and art . . .He continually pushes the boundaries of the field, and in the process redefines it . . . HisElectronic Civil Disobedience enthralled practitioners and scholars of contemporarysocial movements by theorizing that one could move the terrain of an age-old politicaltactic to the internet.” Michael Hardt, of Duke University, argues that ProfessorDominguez’s work with Electronic Disturbance Theater has been “widely influential inacademic fields such as critical theory and performance studies . . . He has essentiallyinvented a form of political activism and civil disobedience that combines artperformance and new technologies.” Finally, Rita Raley of UC Santa Barbara clearlystates that “the bulk of Dominguez’s work falls under the category of art-activism . . . it isnot for nothing that this art practice is also known as ‘Electronic Civil Disobedience’ . . .There are important differences between EDT and what we might call basic distributeddenial-of-service attacks . . . First, EDT by no means aims simply to halt server traffic.An important component of any EDT performance . . . involves an error message thatitself is part of the performance. Specifically, the applet will request files with namessuch as ‘Justice,’ ‘Freedom,’ and ‘Human Rights’ from targeted websites; the errormessage then in effect reads, ‘Justice Not Found’. As a performative exercise EDT hasthree parts: Act 1 is the announcement of the action; Act II is the action itself; and Act IIIis the follow up discussion. The discussion is the site for sophisticated theoreticalintervention.”“Classic” denial of service attacks use the computers of unknowing individuals asthe conduits or vehicles for increased traffic to a given URL, through a programsurreptitiously placed on these computers via the internet. The goal is to mask or obscurethe identity of the actual perpetrators. As Professor Raley emphasizes, ECD or EDT aredefined precisely by their transparency, and by the open acknowledgement of responsibility. Professor Dominguez’s March 4 action was widely publicized ahead of time as a form of conscious, public speech, with the intention of demonstrating thebreadth of support for UC-wide protests against the dismantling of public education inthe state of California. Professor Brett Stallbaum, one of Professor Dominguez’scollaborators and a fellow developer of ECD, further clarifies the distinction:A botnet runs autonomously and automatically, and operates under remotedirection. The owners/users of zombie computers controlled by a botnet aregenerally not aware that their computer is performing any action that could havean effect on a third party or targeted website. Neither are owners/users typicallyeven aware that their computer's security has been compromised, nor that it isunder the direct and ongoing control of a third party. By contrast, in a Virtual Sit-in, there is no botnet controlling anything . . . in a Virtual Sit-in the owners/usersare always aware that their computers are having an effect on a third partymachine or website. This is a very important difference that goes directly to theissue of legality and free speech . . . as organizers of hundreds of past EDT relatedprotests Ricardo (and I) have always taken full and complete public credit for

organizing the protests. Instead of maintaining the anonymity desired bycriminals, we maintain the public face of citizens freely expressing ourselves asartists.This key distinction, and the broad academic recognition of ECD as a form of contemporary artistic practice, is elided in the language of the investigation againstProfessor Dominguez launched by UCSD. In the absence of any more compellingexplanation for this sudden willingness to criminalize a research-based artistic practicethat the university, only a year ago, recognized as deserving of tenure, one can onlyassume that UCSD has been placed under some form of external political pressure.Whether this pressure is coming from the UC Office of the President or some othersource it represents a disturbing breach of the university’s obligation to maintain aclimate of free creative and academic inquiry.The Faculty Coalition is deeply concerned about the chilling effect that will resultfrom this investigation. We view the attempt to prosecute Professor Dominguez oncriminal grounds as a serious assault on the principles of academic freedom and the rightto protest. In our view, a major goal of the investigation is to intimidate ProfessorDominguez and dissuade him from examining activities for which the university hashitherto routinely rewarded him. All that appears to have changed is that in the course of the student protests, UCSD became the object of Professor Dominguez’ acclaimed work.Thus, it is the object of his criticism, and

not

the nature of his work, that appears to haveset off the criminal investigation. In short, Professor Dominguez is being muzzled forpurely institutional reasons and his rights as both scholar and citizen are under attack.Therefore, the Faculty Coalition also views the on-going criminal investigation as anattempt to intimidate and silence all other faculty, staff and students who exposed andmobilized against racism on the campus and eventually singled out the administration asa major pillar of the “hostile campus climate” that has taken root at UCSD. The attack onProfessor Dominguez is therefore a shot across our collective bow, an attempt to restrictboth academic freedom and the right to dissent against the University.The energetic investigation of Professor Dominguez contrasts starkly with theuniversity’s tepid response to the various outrages perpetrated by students, including thecriminal destruction of University property and the serial commission of hate crimes oncampus. To date, no charges of any kind have been brought against a small number of known perpetrators who repeatedly violated the civil rights of many students, staff andfaculty and created an inhospitable climate that almost brought the campus to a standstill.The contrast between the treatment of Professor Dominguez and the

Koala

is particularlygalling and offensive. You will recall that Chancellor Fox refused to act against the

Koala

for fear of infringing on the newspaper’s “freedom of speech”. In light of thisresponse, the criminal investigation of Professor Dominguez is bizarre, and an egregiousinsult to the scholarly community at UCSD.It should be noted that over past two to three months Professor Dominguez andhis collaborators have received several death threats in response to their research.Comments such as “Hopefully, you traitors will be shot in the back of your heads whenyou least expect it” (and much worse) have been posted directly on the

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and also mailed to Professor Grant Kester, Chair of the Visual Arts Department. At atime of increasingly violent rhetoric from political extremists in this country, includingharassment and threats directed at public officials who hold alternate political views, it is