Last year, we discussed whether or not things like Operation Payback by Anonymous (DDoSing sites of organizations they didn't like) was really the equivalent of a modern-day sit-in
protest, rather than a criminal hacking, as law enforcement (and victims) wanted to allege. It appears that this may be a question that courts are going to need to answer. Nick
points us to the news that the lawyer for a homeless guy accused of setting up a DDoS on the City of Santa Cruz (he was pissed about a law) is claiming that DDoS attacks are legal and protected speech
in the form of a protest:
“There’s no such thing as a DDoS ‘attack’,” Leiderman said. “A DDoS is a protest, it’s a digital sit in. It is no different than physically occupying a space. It’s not a crime, it’s speech.”
Leiderman said the crimes shouldn’t be prosecuted at all. “Nothing was malicious, there was no malware, no Trojans. This was merely a digital sit in. It is no different from occupying the Woolworth’s lunch counter in the civil rights era.”
In this case, the case has nothing to do with Anonymous, Lulzsec or any of those high profile groups, but they might want to pay attention to the case. It seems that some of those already arrested in various sweeps against Anonymous and Lulzsec have indicated
that they're considering
the same defense strategy. In that last one, involving Mercedes Haefer, who was charged with being a part of Anonymous, her lawyer is pointing out that President Obama has asked supporters to overload the switchboards of Congress -- and that's a form of a denial of service attack:
"I think this is a political persecution, end of story," Cohen said. "This administration wants to send a message to those who would register their opposition: 'you come after us, we're going to come after you.' That's what has happened in the Eric Holder Department of Justice."
"When Obama orders supporters to inundate the switchboards of Congress, that's good politics, when a bunch of kids decide to send a political message with roots going back to the civil rights movement and the revolution, it's something else," Cohen told TPM, stipulating that he was not indicating that his client was even involved. "Barack Obama urged people to shutdown the switchboard, he's not indicted."
Not surprisingly, I'm sympathetic to this argument, though I do wonder how well it'll play in court. In both of these cases, I think a decent case can be made that the actions are a form of speech, in that they were both designed to protest certain actions. The question is whether or not the courts will recognize them as legitimate and protected protests. And that may very well come down to the judges in the cases.