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 dont care what party you are Bottom line: I will tell you what I think, but dont 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, Im 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? (whats 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 dont know what society expects, and I think its changing. Technology is changing peoples 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, its 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 dont 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
Dont reply on someone elses interpretation of events, do it yourself OpenCongress Understand and evaluate sourcesif everything you know comes from Fox News (or, alternatively, MSNBC), youre 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 Niemller (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