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Flex Your Rights: The Constitution and Political Activism in the Hacker Community

Flex Your Rights: The Constitution and Political Activism in the Hacker Community

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Published by Michael Schearer
"Flex Your Rights: The Constitution and Political Activism in the Hacker Community" as delivered by Michael "theprez98" Schearer at DerbyCon in Louisville, Kentucky, on Saturday, September 29, 2012. See video at http://youtu.be/SRhJoCu4QEA. Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?
"Flex Your Rights: The Constitution and Political Activism in the Hacker Community" as delivered by Michael "theprez98" Schearer at DerbyCon in Louisville, Kentucky, on Saturday, September 29, 2012. See video at http://youtu.be/SRhJoCu4QEA. Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?

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Published by: Michael Schearer on Oct 01, 2012
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Flex Your Rights

The Constitution & Political Activism in the Hacker Community Michael “theprez98” Schearer Louisville, KY

"Under certain circumstances DDoS is protected political speech and should be afforded First Amendment protection.”

Michael “theprez98” Schearer
• Lead Associate and Senior Penetration Tester, Booz Allen Hamilton • 8+ years in the U.S. Navy as an EA-6B Prowler Electronic Countermeasures Officer
– Veteran of aerial combat missions over Afghanistan and Iraq – Spent 9 months on the ground in Iraq as a counter-IED specialist

• Law student, University of the District of Columbia David A. Clarke School of Law

Why you should be skeptical
• IANAL(Y) • My presentation is (both) unintentionally and intentionally biased by my own beliefs • This presentation is about political activism and it is inevitably influenced by political issues; but I don’t care what party you are • Bottom line: I will tell you what I think, but don’t take my word for it; read and learn the issues and make up your own mind!

Before we begin…
• What is Politics? • What is Activism? Hacktivism? • Where is the line between legal and illegal? Should it be moved? Does it matter? • Do the ends justify the means? Does process matter at all, and if so, how much?

Bottom line: Every decision has costs and benefits, not just to the individual, but to families, groups and society at large

Part I: Politics in the Hacker Community FLEX YOUR RIGHTS
THE CONSTITUTION & POLITICAL ACTIVISM IN THE HACKER COMMUNITY

Politics: The Status Quo
• Mostly apolitical, especially at conferences
– Exceptions: HOPE, others? – Activity seems to be limited to a few rare issues that go viral (SOPA/PIPA come to mind)

• A sense that things are beginning to change as more issues invade our space
– Is this good? Bad? – Is there anything we can do about it?

Politics: Moving Forward
• Embracing the issues that effect the community • What am I asking of you?
– Nothing more than the EFF is already doing – But, I’m asking you to start doing it yourself, too – This should not be a radical change for the community

• What are the costs and benefits?

Part II: Issues FLEX YOUR RIGHTS
THE CONSTITUTION & POLITICAL ACTIVISM IN THE HACKER COMMUNITY

“Any method of disruption, at any cost, any means necessary.” -- Jeremy Hammond, DEFCON 12

First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Free Speech and DDoS
"Under certain circumstances DDoS is protected political speech and should be afforded First Amendment protection." -- Jay Leiderman, Attorney, Anonymous Panel, DEFCON 20

th3j35t3r: hacktivist for good?
• Does it matter if the reason is a good one? (what’s “good?”) • Considered a “patriot?” • On “our” side? • The “other side” is outside of the United States?

Free Speech and DDoS
• Muzzling the speech of others is never an acceptable use of the First Amendment • Participating in DDoS is admitting you fail in the marketplace of ideas • More speech, not less, is the answer • Participating in DDoS is like going to a protest and going all Agent Smith on Neo during the interrogation
Bottom line: DDoS is censorship and anathema to free speech

Free Speech and Censorship
• In January 2012, the National Science Advisory Board for Biosecurity (NSABB; a federal advisory committee) recommended censoring two H5N1 flu studies because of “significant potential for harm” • The NSABB itself called it an “unprecedented recommendation” • (One of the studies was eventually “revised” and published in June 2012)

Free Speech and Censorship
• Analogous to infosec disclosure debate? • German “anti-hacking” laws (Section 202c)

Free Speech and Censorship
• In February 2012, PayPal began aggressively enforcing a prohibition against “obscene” content by denying them service • Is this “legal” censorship? • Does it promote self-censorship? A chilling effect? • (PayPal later revised its policy after pushback from a coalition of publishers, authors, and civil libertarians)

“Electronic Civil Disobedience”
Jeremy Hammond and DEFCON12

Privacy and Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“The word reasonable is perhaps the most litigated word in American history.” --Former FCC commissioner Robert McDowell

Reasonable Expectation of Privacy
• If you have an actual expectation of privacy AND society finds that expectation to be reasonable, you have a reasonable expectation of privacy • If either variable is false, there is no reasonable expectation of privacy • Both values are in fact variables, meaning they can be changed in meaningful ways

Reasonable Expectation of Privacy
“You know, I don’t know what society expects, and I think it’s changing. Technology is changing people’s expectations of privacy.”
--Justice Samuel Alito, United States v. Jones, oral arguments

Civil Forfeiture
• Concept
– Vs. property instead of party – Presumption of innocence vs. guilt

• Domain takedowns
– Jurisdiction • In personam • In rem (.com, .net, .org) – Homeland Security/ICE – Microsoft

Copyrights and Patents
• DMCA • Golan v. Holder • Patent trolls

Licensing Laws
• Purpose • Desirability • Examples
– – – – – – Doctors Lawyers Locksmiths? Private investigators? Digital forensics? Masseuse?

Part III: Lens of Liberty FLEX YOUR RIGHTS
THE CONSTITUTION & POLITICAL ACTIVISM IN THE HACKER COMMUNITY

Current Worldview
• Islands of liberty in a sea of power • Not surprising giving massive size of government bureaucracy • Do you have the right to wear a red hat on Wednesday? Why or why not? Or should we ask the question another way? • The presumption of constitutionality

Proposed Worldview
• Islands of power in a sea of liberty • This is a fundamentally different way of asking the question • It shifts the burden from the individual to the government to justify its actions • The presumption of liberty

Skepticism
• • • • Does the law actually accomplish its intent? Short term solution or long term solution? Does it benefit the whole, or just a few? What are the consequences to all groups, not just a few groups?

“One of the great mistakes is to judge policies and programs by their intentions rather than their results.” -- Milton Friedman

“There is nobody in this country who got rich on his own. Nobody. You built a factory out there — good for you. But I want to be clear. You moved your goods to market on the roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for.... You built a factory and it turned into something terrific or a great idea — God bless, keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”

Philosophical Issues
• • • • Social contract Balance of powers Separation of powers Federalism

Legislative

Executive Federal

Judicial

State Government power

Local

Lens of Liberty
• This returns again to our theme of process • Here, it’s about process rather than substance • You may view issues through this lens and still come up with the same answers, or you might come up with different answers

Part IV: Conclusions FLEX YOUR RIGHTS
THE CONSTITUTION & POLITICAL ACTIVISM IN THE HACKER COMMUNITY

Hacktivism

"All suspects are innocent until proven guilty in a court of law.“ -- COPS

Activism

What Can We Do?
• Vote
– Your vote can make a difference – I know, you don’t like the choices • Do something about it • Be a candidate and be the choice

What Can We Do?
• Participate
– – – – – – – Online In person Writing Calling Testifying Speaking Yes, even occupying (if you do it legally)

What Can We Do?
• Educate yourself
– Don’t reply on someone else’s interpretation of events, do it yourself • OpenCongress – Understand and evaluate sources—if everything you know comes from Fox News (or, alternatively, MSNBC), you’re doing it wrong

OpenCongress.org

What Can We Do?
• Educate others
– convince people that your rights and their rights are one in the same
First they came for the Socialists, and I did not speak out-Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out-Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out-Because I was not a Jew. Then they came for me--and there was no one left to speak for me. -- Martin Niemöller (1892-1984)

Notes
• YouTube videos [http://www.youtube.com/theprez98] • For the most up-to-date version of these slides, please visit [http://www.scribd.com/theprez98] • Twitter: @theprez98

Flex Your Rights
The Constitution & Political Activism in the Hacker Community Michael “theprez98” Schearer Louisville, KY

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