A Socio-Legal Study of Hacking

Breaking and Remaking Law and Technology

Michael Anthony C. Dizon

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780367264383
• eBook ISBN: 9781351360142
• Edition: 1
• Topic: Computer Science
• Subtopic: Cyber Security
• Index: Computer Science

The relationship between hacking and the law has always been complex and conflict-ridden. This book examines the relations and interactions between hacking and the law with a view to understanding how hackers influence and are influenced by technology laws and policies. In our increasingly digital and connected world where hackers play a significant role in determining the structures, configurations and operations of the networked information society, this book delivers an interdisciplinary study of the practices, norms and values of hackers and how they conflict and correspond with the aims and aspirations of hacking-related laws. Describing and analyzing the legal and normative impact of hacking, as well as proposing new approaches to its regulation and governance, this book makes an essential contribution to understanding the socio-technical changes, and consequent legal challenges, faced by our contemporary connected society.

Chapter 1

Hacking and law

Hackers and governance of the networked society

In today’s digital, technical and connected world, technologists and technological groups (i.e., those primarily engaged in the creation, development, adoption, use, dissemination or control of information and communications technology) play an important role in the operations and governance of the “networked information society”.¹ Increasingly, people’s behaviors online and offline are influenced not only by states and governmental entities but also non-state actors and organizations. For instance, non-national and non-governmental entities and bodies that maintain the underlying protocols and technical architectures of computer networks such as the Internet Engineering Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (ICANN) influence what individuals and entities can or cannot do on the internet.² Similarly, innovators and technically proficient groups are able to help bring about or heighten profound changes in society. Free and open source software (FOSS) developer communities, for example, have served as models for greater openness and accessibility not just in software programming but also in the fields of education and content creation and distribution (e.g., Creative Commons and open access).³ Activists have successfully used digital technologies to pursue political and social ends,⁴ and the online groups Wikileaks and Anonymous have notoriously used their technical knowledge and skills to cause great disruption to political and technical systems to the embarrassment and dismay of governments and law enforcement bodies around the world.⁵

These technological actors and groups have a significant influence on technical, social and legal matters, due in part to the increasing technologization of society.⁶ There is one particular technological group that has been very influential in advancing digital technologies and shaping culture since the late 1950s – hackers. From the early computer scientists and programmers at the Massachusetts Institute of Technology (MIT) who first used “hacker” as a self-referential term,⁷ and through the succeeding generations of hackers – computer hobbyists, underground hackers, FOSS developers, hacktivists, and makers – hackers can and do shape law, technology and society in new and interesting ways.⁸ Given that hacking has both technical and normative effects on society, understanding the relations and conflicts between hackers and the law is crucial to discerning how the networked information society is actually shaped, regulated and governed.

Of the many types of hackers, makers and hacktivists deserve particular attention. First, they have been receiving increasing public and media attention because of their innovative and disruptive technologies and activities. Second, they represent two ends of hacker culture – one is focused primarily on technological creation and the other on socio-political disruption. Finally, they both influence and are similarly affected by the two laws that are most pertinent to hacking, namely, computer crime and intellectual property laws. Through their technical projects and acts of hacktivism, makers and hacktivists are pushing not just technical but legal and social boundaries as well. Makers and hacktivists are similar in that they both engage in hacking activities in public. Makers are members of hackerspaces, which have open memberships and where hacking is done out in the open with most projects being documented and freely shared online. Similarly, hacking activities carried out by hacktivists are meant to raise public awareness and catalyze social action about important public interest issues. While their activities can be veiled in secrecy and anonymity, hacktivists ultimately seek to make a public impact.

Hack

The term “hacker” has been used to define and describe different individuals and groups. However, since there is not one but many types of hackers, it is difficult to come up with a single, universal definition that encompasses all of them. Even the meaning of a “hack” in relation to computers and technologies is contested and has been constantly evolving since it was first used in connection with the activities of the MIT computer hackers.⁹ According to The New Hacker’s Dictionary, a hack is characterized by “an appropriate application of ingenuity” to any field of activity.¹⁰ For Levy, a hack “must be imbued with innovation, style, and technical virtuosity”.¹¹ To Jordan, a “hack involves altering a pre-existing situation to produce something new; to hack is to produce differences”.¹² Organizers of a hacker camp define hacking as “to use something in a creative way, not thought of when it was first invented”.¹³ Of the many descriptions of hacking, Turkle’s characterization of the hack, which she first wrote in 1984, remains the most relevant, flexible and useful since, despite its high level of conceptualization, it is applicable to most types of hackers and hacking activities. She expounds on the meaning of hacking through the activities of the well-known hacker John Draper (Captain Crunch) who, using a whistle and his knowledge of the intricacies of the global telephone system, was able to make a free long-distance telephone call that “started in California, went through Tokyo, India, Greece, Pretoria, London, New York, and back to California”.¹⁴

Appreciating what made the call around the world a great hack is an exercise in hacker aesthetics. It has the quality of Howard’s magician’s gesture: a surprising result produced with what hackers would describe as ‘a ridiculously simple’ means. Of equal importance to the aesthetic of the hack is that Crunch had not simply stumbled on a curiosity. The trick worked because Crunch had acquired an impressive amount of expertise of the telephone system. This is what made the trick a great hack, otherwise it would have been a minor one. Mastery is of the essence everywhere within hacker culture. Third, the expertise was acquired unofficially and at the expense of a big system. The hacker is a person outside the system who is never excluded by its rules.¹⁵

To paraphrase and refine the above quote from Turkle, whether as noun or verb, a hack is about producing innovation through deceptively simple means, which belies the impressive mastery or expertise possessed by an actor who does not conform to the normal rules and expected uses of a technology or technical system.¹⁶ Hacking is basically the creative, innovative and unexpected use of technology. A hack, whether as product or process, is innovative because it is new, novel, different or surprising. A hack’s deceptive simplicity tends to make it appear magical.¹⁷ In my refined characterization of a hack, expertise can but does not have to be acquired unofficially or at the expense of a big system; the key is that a hack does not conform to the normal rules or expected uses of a technology. As Taylor states, “ ‘true’ hacking is in the system but not of the system, and to remain true to itself it remains dependent upon, but not beholden, to that system”.¹⁸ Thus, the elements of a hack are (1) innovation, (2) simplicity, (3) mastery, (4) non-conformity and (5) technology.¹⁹

Despite the plurality of hackers and the various meanings attached to the word “hack”, taken together, the multiplicity of actors, activities and meanings constitutes a loosely joined but distinct hacker culture. This culture is generally concerned with hacking technologies, particularly those pertaining to computing and communication, and espouses common yet contested norms and values such as, among others, openness, freedom of access, freedom of expression, autonomy, equality/meritocracy, transparency and privacy.²⁰ Because it originated from the early computer hackers at MIT, hacker culture is closely connected to different forms of computer culture and may be considered the latter’s progenitor.²¹ Hacking though is always at the forefront or the bleeding edge of technology creation and adoption. In the case of the MIT hackers, since computing was still a nascent field in the 1960s, the mere act of computer programming and finding ways to make computers do basic things like play music or display images was innovative.²² However, by the time computer hardware and software were commercialized and commoditized in the 1980s, hackers were no longer interested in just writing software or designing personal computers, but in exploring, learning about and hacking even more interesting and challenging technologies and technical systems such as online Bulletin Board Systems (BBS) and computer and telecommunications networks.²³

Computers are an important part of hacker culture, but hacking is not reducible to computers. Hacking involves pushi...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• 1 Hacking and law
• 2 Hacker culture
• 3 Hacker norms and values
• 4 Laws on hacking
• 5 Hacking’s interactions with law
• 6 Normative conclusions and areas of law reform
• Appendix: research methods
• Bibliography
• Index