Slouching towards an electronic frontier

HACKING THE LAW

"Governments ... I come from Cyberspace, the new home of Mind ... [y]ou have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear."

Barlow wrote that in response to the Communications Decency Act of 1996, known commonly in cyberspace as the CDA. The theme of his "A Declaration of the Independence of Cyberspace" is more relevant now than when he delivered the missive in 1996.

In 1996, there was no credible threat to internet freedom and privacy. Not so today. And brave the storm to come; for it surely looks like rain. From representing hackers over the years, I know all too well of things that go creepy-crawly through your wires, straight to the National Security Agency's storage facility in Utah, to be archived forever and ever and ever. In 1996 there was no "Great Firewall of China" nor was Saudi Arabia, for example, able to censor its whole internet.

Now it's scary out there in cyberspace. Government wants in on our independence. Considering the Federal Communication Commission's recent decision to end net neutrality, essentially making us pay on a content-based system, Commissars and pin-stripe bosses roll the dice. Any way they fall, guess who gets to pay the price.

Barlow, most famous for co-writing songs with Bob Weir of the Grateful Dead (whose lyrics have already been liberally sprinkled about), was a co-founder of the Electronic Frontier Foundation in 1990. To give an idea of just how prescient that was, consider that HTTP protocol wasn't invented until 1991. In other words, there weren't even browsers in 1990. The EFF is the preeminent defender of a free and open internet. It's rare that one person has such an impact in two distinct areas of society. Barlow mastered both. Barlow was in no way simply a saint of circumstance, he set out to protect the internet and did just that. His vision led to the EFF, the 900-pound gorilla defending our internet freedoms.

This isn't meant to be a paean to Barlow. As a veteran of 164 Grateful Dead shows and someone who represents hackers and fights vigorously to define rights of free speech in cyberspace, it might seem natural that I sing a sweet farewell in this column. They're a band beyond description. That isn't my intent, notwithstanding the lyrics all over the place. You've all been asleep, you would not believe me. My intent is to ask the question: Who picks up where Barlow left off and where do we go from here? Now the shore-lights beckon, yeah there's a price for being free.

It may seem anathema that the hacker ethos includes an absolutist position on free speech and censorship. There shall be free speech on the net, there shall not be censorship of any sort (the lone exception being child pornography), commands the internet denizen. More than anything, the hackers that I tend to defend want a clear and transparent government and the right to redress their grievances online and anonymously. They also vigorously guard their privacy. As Banksy once said, "In the future, everyone will be anonymous for 15 minutes."

Attempts at onerous and overbearing internet regulations didn't begin and end with the CDA. A few years ago, there were bills pending in Congress known as SOPA (Stop Online Piracy Act) and PIPA (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act). SOPA and PIPA were internet censorship bills masquerading as anti-piracy protection. Heartless powers try to tell us what to think. It was only through a concerted internet-wide protest that these bills died a quick and painful death. In the midst of a storm I'd rather forget.

The question is clear: Will we, denizens of cyberspace, allow ourselves to be governed? Barlow declared, "the global social space we are building to be naturally independent of the tyrannies you seek to impose on us ... Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours."

Yet here we are. The Snowden revelations make clear what the NSA's powers are -- or were a few years ago. Worse, the U.S. government now has the authority to search any computer anywhere in the U.S. from any judicial district. See Federal Rule of Criminal Procedure Section 41(b)(6) -- a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. Section 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

And the politicians are throwing stones. In walks the government, into a world they don't understand, just as Barlow feared in 1996: "You claim there are problems among us that you need to solve ... Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different." The internet is more a different world today than it was in 1996. The ubiquity of the browser, Facebook, Twitter and internet chatrooms makes the culture in cyberspace so much different than that of "meat space," or what you might call "in real life." "We are [still] creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity."

Yet the struggle seems exponentially more difficult as we move forward. The tentacles of government are everywhere in cyberspace. The fight is more intense. The bills keep rolling through Congress. Raise the penalties. Outlaw this, regulate that. It is this, the last true freedom, the freedom to be who you want to be, to say what you want to say, to lol, that must be defended even if it takes our last drop of energy. I'm still walkin' so I'm sure that I can dance.

Sometimes I sit in court waiting for a case to be called. Sometimes I pick up my second phone. The one I only use for encrypted communications. Always I wonder why. Why must I have two phones? Why must I go to such lengths to simply communicate with my clients? To dispense legal advice? Why has my freedom been invaded to the point that governmental intrusion has interfered with the constitutional right to counsel, as one must see free communication between lawyer and client to be the essence of the right to counsel. Yet the government interferes with me because I choose to represent those that would have the temerity to hack and expose secrets.

"These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uninformed powers." Barlow evokes Washington, Jefferson, DeToqueville, Brandeis and more. It's always in fashion to say that you love the Founding Fathers. All too often, the loudest lovers are the least understanding of the true principles of freedom. It is this, the last frontier, the electronic frontier, that must be protected at all costs. Come grow the scorched ground green.

The way I see the issue is that it is our duty to preserve a free and open internet for future generations: We don't own this place, though we act as if we did, It's a loan from the children of our children's kids. The actual owners haven't even been born yet.

Faring thee well now, let your life proceed by its own design. Nothing to tell now, let the words be yours, I'm done with mine.

Also, donate to the EFF. They're a nonprofit and their presence grows more valuable as each day passes.