Anonymity,fidelity to law,and digital Civil disobedience

Abstract

Making use of the liberal concept of civil disobedience, this paper assesses, under which circumstances instances of illegal digital protest—called “hacktivism”—can be justified vis-à-vis the pro tanto political obligation to obey the law. For this, the paper draws on the three main criteria for liberal civil disobedience—publicity, nonviolence, and fidelity to law—and examines how these can be transferred to the realm of the digital. One of the main disanalogies between street and cyberspace protests is the tendency of hacktivists to remain anonymous, which in turn calls into question their fidelity to law (the third criterion). The paper argues that there are functionally equivalent alternatives to what can be called the “acceptance-of-legal-consequences-condition” (ALCC) associated with the fidelity to law. As a result, the ALCC is not a necessary condition for hacktivists to showcase their fidelity to law, thereby resolving the apparent disanalogy.

1. Introduction

“Disobedience, in the eyes of anyone who has read history, is man’s original virtue. It is through disobedience that progress has been made, through disobedience and through rebellion.” ¹

In 2013, Jeremy Hammond was sentenced to 10 years in prison for—among other charges—taking part in the “Anonymous”-operation of hacking Stratfor Inc. and leaking millions of emails that showed how the US government was subcontracting private surveillance companies to monitor activist groups, from Occupy Wall Street to the activists of the Bhopal Union Carbide incidence. In her statement of judgment, Judge Loretta Preska concluded: “These are not the actions of Martin Luther King, of Nelson Mandela … or even Daniel Ellsberg.” ² Maybe she is right, and they are not. After all, Jeremy Hammond is an enigmatic figure, and his case is ambiguous. But as William Scheuerman points out, “a hacktivist like Hammond is a very different political creature from Martin Luther King, Jr. Yet he is hardly a ‘crook’ using computers to rip people off for personal or private gain.” ³

In this paper, I will make use of the liberal concept of civil disobedience, in order to give an account of how to draw this distinction between “crook” and “activist” in the realm of the digital. Although such an endeavor is primarily academic, it can also help to provide both hacktivists and criminal attorneys as well as prosecutors and judges with clearer criteria as to what may count as “conscientious law-breaking” ⁴ or “principled disobedience” ⁵ in the context of illegal digital protest. Categorizing instances of law-breaking as “conscientious” or “principled,” in turn may (and should) have a practical impact on the severity of the sentences.

As Judge Preska mainly refers to Hammond’s actions, leaving aside his motives, ⁶ I will focus on the question which forms of illegal (digital) protest and activism may be in principle justifiable. In doing so, I set aside the question, what purposes such protests can legitimately serve. The same goes for the debate on whether at all—and if so, up to which threshold—an unjust legal order may still generate a duty to obey its laws. Instead, I focus on legitimacy rather than on justice. ⁷ A legitimate order is one that has a “right to rule,” ⁸ in the sense that it generates “content-independent reasons” ⁹ for its addressees to obey its laws. Although these “laws cannot be too unjust, if they are to be legitimate,” ¹⁰ the connection between the two is not straightforward. For example, even Rawls’ liberal conception of legitimacy does not require the legal order to be fully just in the Rawlsian sense. Rather, he asserts that “legitimacy is a weaker idea than justice and imposes weaker constraints on what can be done.” ¹¹

Employing a liberal notion of civil disobedience, I will make an argument from analogy:

1. A legitimate legal order generates a pro tanto obligation to obey its laws. ¹²

2. Some forms of illegal protests can nonetheless be justified vis-à-vis this obligation. Among these are those that scholars have called “civil disobedience.” ¹³

3. If some forms of digital illegal protests are sufficiently similar to civil disobedience, by analogy they are also—ceteris paribus—justifiable vis-à-vis the obligation to obey the law.

4. Such forms of digital illegal protests can then rightly be called “digital civil disobedience.” They merit closer prosecutorial and judicial inspection, and—as a result—are potentially subject to less severe sentences.

Although this argument seems to be straightforward and has already been employed by others, ¹⁴ some more or less apparent disanalogies indeed make digital activists “very different political creature[s]” from the idealized proponents of civil disobedience of the Civil Rights and Women Equality movements of the past. As such, they call into question the very analogy the argument purports.

In this paper, I will focus on one of these disanalogies, namely the problem of anonymity, which lies in the fact that most digital illegal activism is carried out anonymously. Rather than exposing themselves to the public and thereby giving the authorities the opportunity to arrest them for their illegal actions, they typically try to remain anonymous and avoid arrest and trial. This casts doubt on their “fidelity to law,” ¹⁵ that is, their general adherence to the legal order. As a result, the civility of their protest as a whole is in dispute. In what follows, I will call this position—that is, that protesters have to accept the legal consequences, in order to commit acts of civil disobedience—the Acceptance-of-Legal-Consequences-Condition (ALCC).

Other authors tackling this question typically widen the “civility” condition of civil disobedience to accommodate forms of digital illegal activism and protest, ¹⁶ or even abandon this condition altogether in favor of a justification of “uncivil disobedience.” ¹⁷ In contrast, in this paper I argue that the ALCC is not mandatory to demonstrate fidelity to law, and therefore not a necessary condition for the categorization of a form of protest as “civil disobedience.” By sticking with the Rawlsian liberal definition of civil disobedience and its fairly narrow notion of civility, my account has two advantages:

First, it can garner a broader acceptance for the forms of illegal digital activisms that can still be categorized as civil disobedience under this narrower notion. Such a notion is more likely to be in line with a fundamental agreement about civil disobedience across the political spectrum. Especially among actors within the legal system (law enforcement officers, criminal prosecutors, and judges), this notion is more commonly accepted, as it will presumably have been part of their legal education. Second, the forms of digital illegal protest thus categorized will probably also be captured by broader definitions of civil disobedience, as the liberal notion typically is a proper subset of these. ¹⁸

To show that the ALCC is not a necessary condition for (digital) civil disobedience, in part one I first sketch out the criterion of civility and its interdependence between publicity, nonviolence, and fidelity to law. This sets up the argument for later. The second part briefly introduces some forms of digital illegal protest that prima facie fit the definition put forward in part one. Part three rejects the ALCC as a necessary condition for civil disobedience and deals with some objections.

As a result, I will show that some forms of digital illegal protest may be categorized as digital civil disobedience and therefore merit a closer inspection on the part of law enforcement and judiciaries. Meeting the criteria for civil disobedience does not mean that a given protest should be legalized. Rather, the sentence should reflect the political aim and symbolic quality of the action as a political speech act. Instead of being punished, which shows societal disapproval and serves purposes of deterrence and retributive justice, civil disobedients ought to be penalized, which primarily aims at upholding the legal order and securing equality before the law, thereby asserting the rule of law. ¹⁹

2. The Criterion of Civility

Following Rawls’ famous definition, ²⁰ the liberal conception of civil disobedience rests on a notion of civility that encompasses three features: ²¹ 1) publicity, 2) nonviolence, and 3) the “fidelity to law,” that is, the acceptance of the legal order as by and large legitimate.

1) The demand for publicity not only roots liberal civil disobedience firmly in the political realm, as Rawls postulates that civil disobedience aims at “address [ing] the sense of justice of the majority of the community.” ²² At the same time, it establishes civil disobedience as an entirely symbolic act, “which seeks so to dramatize the issue that it can no longer be ignored.” ²³ This sets the liberal account of civil disobedience apart from conscientious objection, as well as more disruptive forms of resistance that are not so much targeted at political communication and the public sphere, but rather on (nonviolent) obstruction and sabotage. ²⁴

2) As an inherently symbolic act, civil disobedience has to remain nonviolent. Violence is likely to infringe on other’s civil liberties, which “tends to obscure the civilly disobedient quality of one’s act.” ²⁵ According to the liberal account, nonviolence is instrumental for the communicative—and therefore public—nature of civil disobedience. This instrumental view on nonviolence reinforces the civil disobedients’ alleged main goal: to make public their “disavowal and condemnation of a certain law or policy” ²⁶ and thereby “address the sense of justice of the majority of the community.” ²⁷

3) In much the same vein, the demand for fidelity to law also points back to the publicity criterion. The illegality of the protest is confined to the “limits of fidelity to law,” ²⁸ in order to communicate to the addressees of the protest—the rest of the political community—that the protesters deem the legal order on the whole as legitimate. This sets the civil disobedient apart from the (non-violent) revolutionary as well as the petty criminal. ²⁹ According to many theorists and practitioners alike, the most obvious and unambiguous way to demonstrate this allegiance to the legal order is to let oneself be arrested and tried in court. ³⁰ This has become so commonplace that in many accounts this criterion of “non-evasiveness” ³¹ has—implicitly or explicitly—acceded to a necessary condition for liberal civil disobedience. ³²

In what follows, I will show that this Acceptance-of-Legal-Consequences-Condition (ALCC) is not necessary for the “fidelity-to-law”-criterion. In Section 4 and I will highlight some arguments in favor of abandoning the ALCC. These, however, fail to provide sufficient reason to do so. To supplement these arguments, I will make an argument from functional equivalence and show why the ALCC is not functionally necessary to demonstrate the activists’ fidelity to law. Although adhering to the ALCC is one—fairly convincing, though by no means foolproof—way to do this, there are others that work similarly well.

Since the argument here works from analogy, I will not say much on the justification of civil disobedience itself. Rather, as I mentioned in the beginning, I assume that certain forms of illegal protest can in principle be justified vis-à-vis the duty to obey the law. Whether this justification follows the liberal Rawlsian tradition, according to which civil disobedience is justified in cases of severe injustices—basically as a kind of state of emergency—or whether it adheres to more republican, deliberative, or radical democratic accounts is not my concern here. ³³

3. Cyber-/Online-Activism, Hacking, and illegal digital protest

In order to qualify as Digital Civil Disobedience, the political actions in question have to meet the civility condition in the sense sketched out above. That means they have to be public, nonviolent, and illegal within the “limits of fidelity to law.” First of all, however, they need to be digital. Rather than just using digital media and communication tools for the purpose of organizing physical protests on the streets, digital protests make use of cyberspace itself as the arena of political action. As such, they create as well as target digital public spaces. For example, while Twitter and other social media have been claimed to play a crucial role in the Arab Spring, ³⁴ the protests themselves took place on the ground, on Tahrir square or the streets of Homs.

In contrast, digital protests genuinely take place online. They use shitstorms, hashtags, and memes to create attention and newsworthiness, block or deface websites, raise funds via campaign sites, hack servers, leak data, etc. In sum, they constitute what has often been called Cyber-, Internet-, or Online-Activism. ³⁵ However, to be considered disobedient in the Rawlsian sense laid out above, some of the actions that comprise these types of activism have to be illegal. Since Cyber-/Online-Activism also includes forms of legal protest and campaigning, we have to narrow down the scope of this analysis to illegal forms of Cyber-/Online-Activism.

For this narrower framework, the term “hacktivism” is a good start. Hacktivism is generally described as “the use of hacking techniques to promote a political agenda on the Internet,” ³⁶ where “hacking” in this context usually encompasses various kinds of technical methods to “gain access to sensitive information and computer networks” ³⁷ in an illegal fashion. Depending on the definition of “hacktivism,” however, the term may also incorporate forms of “political coding,” ³⁸ that is, manufacturing and distributing encryption tools as well as tools to circumvent online censorship; or obfuscation techniques, that is, methods to prevent or impede online tracking and personal data aggregation. ³⁹ Not only are those forms not necessarily illegal but—more importantly—they do not aim at publicity, which is one of the three necessary criteria of a Rawlsian liberal definition of civil disobedience. Only forms of hacktivism that seek to “address the sense of justice of the majority of the community” ⁴⁰ can be considered to qualify as digital civil disobedience. ⁴¹

As a result, the types of protest that are suitable for closer inspection for the argument from analogy have to employ methods that in principle are fit to meet the combined four criteria outlined in both this and the last section: 1) digitality, 2) publicity, 3) nonviolence, and 4) illegality within the limits of fidelity to law. In what follows, I will single out four types of hacktivism that are prima facie promising in this regard: ⁴² a) DDoS actions, b) website defacement, c) leaking, and d) copyright infringements. ⁴³

a) DDoS (Distributed Denial of Service) actions are carried out with the objective to overload a website or server through repeated requests from different (“distributed”) computers so that it is no longer accessible (“denial of service”). In contrast to the other forms of protest presented here, only the server’s infrastructure and computing power are targeted. For this reason, DDoS’ing is also often likened to “virtual sit-ins.” ⁴⁴ In theory, a sufficiently large number of users who repeatedly press their browser refresh button would be enough to bring a website down. However, modern network infrastructures and counter measures against criminal DDoS’ing very early on prompted easy-to-download tools that facilitate participation without much prior computer knowledge.

DDoS’ing became known primarily through the actions of Anonymous, especially in “Operation Payback,” which led to the temporary blocking of the websites of PayPal, MasterCard, and Visa in 2010. A more recent example is the use of this method against Ecuadorean government institutions after the removal of Julian Assange from the Ecuadorian embassy in London in 2019. Ecuadorian officials claimed that about 40 million DDoS actions were directed against the websites and servers of government institutions in the days following the incident. ⁴⁵

b) In contrast, website defacements consist of hacking a website and altering its content to draw attention to a political issue. This is sometimes called “e-graffiti,” ⁴⁶ or compared to illegally installing protest banners on buildings, as for example Greenpeace is famous for. In both cases, private property is accessed unlawfully and altered, often by overcoming more or less effective security measures (fences, alarm systems, password protection, etc.), in order to create news value and gain public attention.

Examples include the defacement of the MIT website after the suicide of the Open-Access-activist Aaron Swartz, who faced charges of 35 years in prison and millions of dollars in damages after downloading 4,5 million scientific articles as PDFs from JSTOR, using his MIT account. ⁴⁷ On an all-black background, the defaced MIT website read “R.I.P. Aaron Swartz” in large white letters. Another example concerns the “Deportation-Class” protests, in which the Lufthansa website was hacked and changed to protest the fact that Lufthansa was making profit through its involvement in the deportation of illegal migrants. ⁴⁸

c) In the case of Leaking/Digital Whistleblowing, activists illegally gain access to classified information from institutional actors such as government agencies or private companies—usually by bypassing the security architecture of the corresponding servers, database systems, and email clients. The information is then published using digital platforms such as WikiLeaks. As with Jeremy Hammond’s Stratfor hacks that I already mentioned briefly, leaking essentially constitutes a form of digital whistleblowing, where the information gathering and distribution takes place exclusively via digital means. While traditional whistleblowing typically relies on internal informants who steal incriminating documents and make them public, leaking as a digital protest technique is necessarily preceded by breaking into other people’s computer systems.

Hacktivists employing leaking see their actions often as the exercise of public control over state institutions and private companies. Hacker and journalist Jacob Appelbaum, for example, expands on the notion of the media as the “fourth estate” by describing WikiLeaks as the “fifth estate” and combines this role with a critique of the media: “When the media is gagged, we refuse to be gagged. We refuse to be silent.” ⁴⁹

d) Finally, systematic copyright infringements are often tied to a general online culture of transparency and freedom of information. Combined with the ideal of the free availability of knowledge, this has given rise to an open access activism that is critical of the classic notion of copyright. For example, the above-mentioned Aaron Swartz stated in his “Guerilla Open Access Manifesto”: “The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.” ⁵⁰ Filesharing platforms such as “The Pirate Bay” and “Sci-Hub” have also continuously highlighted the asymmetry of access to knowledge and formulated it as a question of justice that morally demands the circumvention or infringement of copyright laws.

4. Analogy and Anonymity

For the argument from analogy to get off the ground, the types of hacktivism that I introduced in the last section (and which for the purposes of this investigation may be called “hacktivism in the narrow sense”) have to be in principle capable of meeting the three criteria of a standard liberal account of civil disobedience (publicity, illegality within fidelity to law, and nonviolence), plus the necessary condition of being digital as a precondition for digital civil disobedience. Whether certain instances of these types actually meet these criteria, and whether there may be additional conditions to be met, such as last resort or right intention, ⁵¹ is not my concern here. The analogy that I am arguing for has a limited scope, namely to draw prosecutorial and judicial attention to the fact that certain instances of digital illegal protest may merit a classification as (digital) civil disobedience. As such, the analogy focuses solely on the forms of hacktivism and the methods it employs.

To see where we stand, let us recap the argument from analogy:

1. A legitimate legal order generates a pro tanto obligation to obey its laws.

2. Some forms of illegal protests can nonetheless be justified vis-à-vis this obligation. This is what scholars have called “civil disobedience.”

3. If some forms of digital illegal protests are sufficiently similar to civil disobedience, by analogy they are also—ceteris paribus—justifiable vis-à-vis the obligation to obey the law.

4. These forms of digital illegal protests can be rightly called “digital civil disobedience.” They merit closer prosecutorial and judicial inspection and—as a result—are potentially subject to less severe sentences.

For the sake of the paper, I assumed that premises 1 and 2 are true, that is, that a moral duty to obey a legitimate legal order exists. I further assumed that this duty can be trumped by certain moral considerations such as self-defense, a case of emergency etc.—and that civil disobedience is one of them. Fleshing out premise 3 (the argument from analogy), I named three standard criteria of (liberal) civil disobedience: publicity, illegality, and nonviolence. From the various forms of Cyber-/Online-Activism, I then pre-selected four types of “hacktivism in the narrow sense” that prima facie fit the criteria. This means that they are typically illegal and aimed at publicity. Whether the nonviolence condition holds in circumstances of illegal cyber protest in general, and how it can be met in these four types, I cannot evaluate here. ⁵² Rather, I will focus on the criterion of illegality within the limits of fidelity to law, and here more precisely on the Acceptance-of-legal-consequences-condition (ALCC).

For most authors arguing from a liberal account of civil disobedience, the clearest sign that protesters act within the limits of fidelity to law, that is, that they entertain a fundamental belief in the legitimacy of the legal system, is their “willingness to accept the legal consequences” ⁵³ of their actions, as Rawls puts it. By letting themselves being arrested, being tried in court and accepting the sentence, the protesters showcase not only their belief in the legitimacy of the legal procedures the legal order provides. More importantly, they make clear that they do not deem themselves above the law. They ultimately make known their respect for the idea of the rule of law itself. Martin Luther King Jr also argues this second point when he writes:

“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.” ⁵⁴

The problem with most kinds of hacktivism, including hacktivism in the narrow sense, is that it is carried out anonymously. Hackers typically use pseudonyms, screen names, handles, or avatars. Only in very few cases, they protest out in the open and will let themselves be easily identified and arrested. After all, one of the most prolific hacktivist groups of the last decade calls itself “Anonymous.” ⁵⁵ In the past, hacktivists have very rarely come out in the open by themselves and claimed responsibility. Rather, the arrests that have taken place were mostly due to major police investigations.

The prevailing anonymity among hacktivist groups cast serious doubts on their adherence to the ALCC. If hacktivists mostly operate anonymously, the argument goes, this strongly suggests that they are not willing to accept the legal consequences of their actions. This, in turn, severely calls into question their fidelity to law. Following this line of argument, Judge Preska would be correct to assert that Jeremy Hammond was not pursuing civil disobedience, but is instead a petty criminal.

In response to this, authors have provided a variety of arguments. In the following, I will highlight four of them briefly and assess why they do not provide sufficient reasons to abandon the ALCC in cases of hacktivism. Also, from the discussion it will become clear that they cannot be utilized to show that the ALCC is not mandatory in order to demonstrate the civility of one’s cause, which is—as we recall—the goal of this paper.

4.1 Arguments against the ALCC

1. Legitimacy of online governance: Most commonly, authors have argued that the liberal account of civil disobedience is especially catered to a near-just society that comprises a legal order whose legitimacy is not in question. In the realm of the digital, on the contrary, “serious problems of online governance” ⁵⁶ arise. Authors, for example, point to the fact that—unlike in the physical world, where streets, squares, parks, etc. are usually public places—the digital world is merely a “quasi-public sphere, […] akin to shopping malls, which seem like public spaces but in which the rights of citizens are restricted, as they are in fact private.” ⁵⁷ In this sense, digital public spheres are almost always “mediated by commercial entities, whose terms of service generally give a great deal of discretion to the content host and few protections for the end user.” ⁵⁸ As a result, hacktivists incur much higher risks to be charged with severe sentences than activists in the offline world and therefore—the argument goes—should not be judged by the same standards. ⁵⁹

This argument does not provide sufficient reasons to reject the ALCC, however. Even if we assume that cyberspace is a legal order in its own right, ⁶⁰ it is the wrong addressee for our inquiry. After all, it is not the legal order which laws the hacktivists break, ⁶¹ and therefore not the legal order that they fail to meet their obligations towards. According to the liberal theory of civil disobedience, every legitimate legal order generates a pro-tanto-obligation to obey its laws. In cases of hacktivism and other illegal digital protests, however, the protesters are typically prosecuted for offenses against the legal provisions of a certain national legal order. It is therefore this legal order that needs to be legitimate in order to generate an obligation to obey its law, which the illegal protesters violate. In turn, they need to justify their violation vis-à-vis this very legal order, be it by adherence to the criteria of civil disobedience, be it by refuting the order as illegitimate.

This justification relation also provides ground against the argument that national jurisdictions only act as a legal assistant for the legal online order by providing law enforcement and prosecutorial services. In sum, we can set aside the question of the legitimacy of cyberspace as it plays no part in assessing the obligations of hacktivists. Therefore, it does not provide reasons to refute the ALCC as part of the justification scheme from (digital) civil disobedience for not fulfilling these obligations.

2. Exclusivity of the ALCC: A second argument views the ALCC as exclusive and elitist, since it “restricts the opportunities for dissent and disruption to the few who can bear the state-determined cost.” ⁶² If political protest is a fundamental democratic right that is equally open to every member of the political community, and if illegal protest can be morally legitimate, then—the argument goes—illegal protest must also be a fundamental democratic right equally open to everyone.

This argument cannot provide sufficient reasons to reject the ALCC either, for two reasons: First of all, from the assertion that some illegal political protest can be morally justified, it does not follow that illegal protest is a fundamental democratic right—especially within the framework of liberal civil disobedience that his paper operates from, that is, that the protests take place in a society, in which at least adequate lawful measures for political dissent and protest are institutionalized. If illegal protest is no fundamental right, however, it is hard to see without further argument why every member of the political community has to enjoy it equally.

Second, the exclusivity argument misunderstands the role of the ALCC and of (digital) civil disobedience: As illegal political protests—including hacktivism—are almost always associated with certain dangers and “state-determined costs,” identifying and justifying certain hacktivisms as digital civil disobedience will potentially decrease rather than increase these costs, by urging prosecutors and judges to hand out sentences more adequate to the symbolic nature of the disobedient act.

To be sure, there will most likely be demographics that cannot afford lawyers, days in court, probation etc. The mere procedure of prosecution and even symbolic sentences will seriously deter them from protesting illegally. As said before, however, if the legal order is legitimate, there are ample opportunities for lawful protest. Although it may be the case that beyond these opportunities certain illegal protest forms are also morally justified, the legal order does not have to—and, from a rule-of-law-perspective, cannot—provide legal measures for it. In other words: (Digital) civil disobedience cannot be legalized, therefore certain minimal state-determined costs always apply. From this perspective, the ALCC opens an additional window of opportunity as part of a potential justification of protests as (digital) civil disobedience, rather than barring one.

This does not mean, on the other hand, that all state-determined costs must be accepted—on the contrary. This is the whole point of justifying illegal acts as civil disobedience. In the end, it comes down to the severity of these costs in a given context. With respect to the empirical case of hacktivism, this poses a chicken-and-egg problem: Is it because of the state-determined cost that hacktivists are justified to remain anonymous and try to evade the legal consequences; or is this evasion—and the resulting difficulty for hacktivists and their attorneys to justify these kinds of anonymous protests as civil disobedience—the very reason for the state-determined costs to be as high as they are?

Although this highly depends on the individual case, in general it can be expected from the hacktivists to make a clear (and sometimes repeated) effort to stick as closely to the requirements of digital civil disobedience as possible. It can be argued that they at least have to start off their campaigns adhering to the ALCC, as long as there is a serious presumption that the justification of their actions as digital civil disobedience will severely lower the state-determined cost. In most of the highly debated cases so far, however, the hacktivists have violated the ALCC right from the beginning by acting anonymously, thereby making it more difficult for law enforcement and judiciary to see their actions as instances of digital civil disobedience. Therefore, it is premature to claim that the hacktivists were unduly burdened by the ALCC, as they have not seriously tried what would happen, had they adhered to it. ⁶³

Although the reference to state-determined costs or the missing proportionality and consistency of sentences (i.e., basic rule-of-law criteria) may in certain circumstances provide sufficient reasons for refuting the ALCC, this is not the case for most of the famous hacktivism cases of the last two decades. As things stand, this would reverse causality and burden of proof.

3. Hacker Culture: A third type of argument points to a distinct hacker culture of anonymity, which values privacy very highly and—at least for the “Anonymous” collective—includes a “taboo against fame-seeking.” ⁶⁴ This culture, it is claimed, impedes hacktivists from coming out into the open and adhering to the ALCC. In addition, there is a worry among hacktivists that the tendency of media coverage to personalize and individualize news items may slowly lead to unwanted hierarchies in the form of mediagenic representatives. ⁶⁵ Conversely, anonymity as a cultural practice could foster the “relational equality” ⁶⁶ between individual hacktivists and the protest movement as a whole.

As with the first two types of arguments, also this type cannot provide sufficient reasons to reject the ALCC, for two reasons: First, holding a belief does not make this belief true. Even if we assume that these subcultural practices and corresponding beliefs can be empirically shown to be wide-spread and actually provide the main reason for the hacktivists to remain anonymous, they may very well be mistaken. After all, being an official spokesperson or representative does not necessarily entail being a leader—much less an authoritarian one. In fact, Anonymous insider and expert Gabriella Coleman has shown that despite the anonymity, the collective had a—albeit secret—hierarchical decision structure. ⁶⁷ Nor prevented the culture of anonymity the journalist Barrett Brown from becoming a self-elected spokesperson of the group. ⁶⁸ Holding these kinds of beliefs can be an explanation of the hacktivist’s actions, but by itself it is not a (moral) justification. In order to get off the ground, the argument would need more substantial empirical backing that such hierarchical structures are highly likely to develop in these kinds of circumstances.

Secondly, such an argument would open up all kinds of rejections of legal provisions and sentences based on cultural practices and individual beliefs. “Conscientious law-breaking,” ⁶⁹ however, has to be the exception, not the rule, if law is to fulfill its function “to remove [] tasks of social integration from actors who are already overburdened in their efforts at reaching understanding.” ⁷⁰ A wide-spread non-compliance will not only delegitimize and destabilize a given legal order, but also cast serious doubts on the legitimacy beliefs of the law-breakers and their understanding of the rule of law. In other words: Non-compliance above a certain threshold makes it very hard for the hacktivist to show that they adhere to the rule of law and deem the legal order as legitimate—which is ultimately what the ALCC is for.

Although cultural practices and beliefs play an important part in our social lives, ⁷¹ they may not only be overridden by moral considerations, ⁷² but also by considerations of legal equity and stability. By itself, they cannot provide sufficient reason to disregard the ALCC, all things considered. At least, hacktivists that wish to remain anonymous will have to suggest alternatives to the ALCC, in order for their appeal to cultural practices to forego its affinity to moralism and self-justice. This is exactly what I will develop in Section 5.

4. The normalizing power of civil disobedience: This last line of argument is directed at the power asymmetry between discontent minorities and the overall public, or protesters and law enforcement respectively. ⁷³ For example, addressing the normalizing power that the concept of civil disobedience holds, Celikates claims that

“‘Civility’ has always been an ideological weapon, a stick with which the moral majority beats unruly subjects into conformity, attempts to control protest by dividing it into good and bad, and justifies the silencing of dissent especially by minorities.” ⁷⁴

As an “essentially contested concept.” ⁷⁵ the meaning and extension of civil disobedience are subject to power struggles between different interest groups. “Civil disobedience,” in this view, is as much a combat term to justify illegal protest measures as to denounce them. The liberal notion of civil disobedience is inextricably tied to a sense of “decorum,” ⁷⁶ which gives the general public wide discretion as to what should count as such. Moreover, in retrospect political discourses tend to “sanitize” past movements “for public consumption, downplay [their] opposition and use the mythologized version to discredit [their] successors.” ⁷⁷ Therefore, the ALCC (and potentially also other civil-disobedience-provisions) should be disregarded, since they are primarily a tool to control and silence already marginalized groups and take away their—sometimes only—effective measure to voice their concerns. ⁷⁸

Although I generally agree with this assessment, watering down or even discarding the liberal criteria for civil disobedience comes at a high cost: Not only is it increasingly difficult for the public as well as law enforcement agents, criminal prosecutors, and the judiciary in general, to discern unjustified illegal protest from instances of civil disobedience. More importantly, such a move leaves it entirely at the discretion of those legal institutions to decide on the merits of a claim to civil disobedience. This would most certainly raise the “state-determined cost” of engaging in potentially illegal protests.

To be clear, there may be perfectly good justifications for other forms of protest that do not follow the criteria for civil disobedience. These, however, can no longer claim to be instances of civil disobedience, and consequently have to be justified on other grounds. In order to justify illegal protests on the grounds of the liberal notion of civil disobedience, they have to meet the aforementioned three criteria, amongst them the fidelity to law criterion. As a result, the protesters have to either adhere to the ALCC, or at least offer clear and concrete alternatives to it. By itself, the appeal to “civil disobedience” as a contested concept and the site of power struggles cannot provide sufficient reason to disregard the ALCC. On the contrary, within the justificatory framework of civil disobedience, the ALCC serves an important argumentative function within such struggles for recognition. Moreover, this function can be seen as emancipatory rather than suppressive and normalizing, as it works fundamentally in the favor of illegal protesters that adhere to it.

4.2 Reforming or abandoning civil disobedience?

Embracing one of these four claims, many authors go on to argue either for reforming or for abandoning the concept of civil disobedience within the digital realm. From a reformist perspective, hacktivists are, for example, only required to express “implicit fidelity to a modest interpretation of the publicity test.” ⁷⁹ The benefits of hacktivism and illegal protests, in general, are judged to outweigh the fact that protesters violate the ALCC and thereby raise doubts about their fidelity to law.

In contrast, moves to abandon the concept point to other “legitimate forms of politically motivated lawbreaking.” ⁸⁰ Transcending the liberal criteria for civil disobedience, these accounts are more concerned with a general justification of “politically or morally motivated […] instances of principled disobedience.” ⁸¹ In doing so, authors tend not to actually break with the three civil-disobedience-criteria of publicity, non-violence, and fidelity to law. However, especially a very loose endorsement of the last criterion (fidelity to law) often moves these forms of “principled disobedience” in close proximity to non-violent revolutionary resistance. For example, in an official statement, the Black Lives Matter movement asserted that in the movement “there is deep skepticism about whether the American system is salvageable, because it is so deeply rooted in ideas of racial caste.” ⁸²

Although there may be perfectly good justifications for these actions, as I said before they have to be found outside the concept of civil disobedience. Any illegal protest that is refuting even a basic fidelity to law by its actors—for example, because it is carried out in the spirit of disregard for the entire legal order and therefore ultimately with the intent to overthrow it—cannot be justified by appeal to civil disobedience.

Moving beyond these two types of solutions, in the next Section I will argue that the ALCC is not mandatory in order to display this basic fidelity to law. As a result, hacktivists can offend against the ALCC and still exhibit fidelity to law, thereby remaining in the justificatory and discursive domain of civil disobedience.

5. Functional equivalence

Within this domain of civil disobedience, the ALCC’s primary function is to display a “willingness to be identified and to accept punishment,” ⁸³ and by this ultimately show the protester’s fidelity to law. The ALCC thus plays a crucial part in the “irreducible symbolic dimension” ⁸⁴ of civil disobedience as a political speech act, which has two addressees. The first one is the “sense of justice of the majority of the community,” ⁸⁵ where civility and decorum are necessary in order to cater to “the public’s rather narrow understanding of the boundaries of acceptable political protest.” ⁸⁶ Martin Luther King touches upon this symbolic and public facet of civil disobedience, when he reflects on the dramaturgic aspect of the imprisonment, prosecution, and trial:

“If you confront a man who has been cruelly misusing you, and say ‘Punish me, if you will; I do not deserve it, but I will accept it, so that the world will know I am right and you are wrong’, then you wield a powerful and just weapon. This man, your oppressor, is automatically morally defeated, and if he has any conscience, he is ashamed.” ⁸⁷

Aside from the instrumental reason that such a communicative symbolism will more likely generate solidarity within a broader public, from a republican and deliberative democratic theoretical background there is arguably also an obligation to take responsibility for one’s political opinions and remain answerable to others challenging one’s views. ⁸⁸ Hacktivists, according to such an account, cannot act anonymously, because as part of the body politic they have an obligation to stay answerable and provide reasons for their political opinions when challenged.

The second addressee, which is often overlooked in accounts that criticize the need for adherence to decorum in liberal conceptions of civil disobedience, is the legal order itself—in the form of law enforcement and the judiciary in general. Here, it is not so much decorum and general acceptability of a political public that illegal protesters need to be concerned with. Rather, by adhering to the ALCC, hacktivists make it clear that they do not deem themselves above the law, but that their protest may be “at the limits of, yet still within, the politico-juridical framework of the liberal-democratic nation state.” ⁸⁹

In other words, in order to qualify as civil disobedience, illegal protesters have to show fidelity to law in the sense of a) the rule of law itself, in order to make clear that they accept some version of (legitimate) law as an authority at all; ⁹⁰ and b) to the fundamental principles on which a legitimate legal order is founded. ⁹¹ Although those engaging in civil disobedience violate (even if only selectively) their obligation to obey the laws of a specific legal order, they must at the same time demonstrate—to the representatives of this legal order—that they nonetheless recognize their obligation to comply with the “legitimating constitutional principles which are based in sound reasoning and deserve recognition.” ⁹²

These principles may be principles of justice, as, for example, Martin Luther King claimed: “One has a moral responsibility to disobey unjust laws.” ⁹³ However, when addressing the representatives of the legal order, it generally makes more sense to appeal to constitutional principles or rule-of-law-criteria, as these kinds of fundamental norms are more compatible to legal discourses. By appealing to these higher order legal principles, hacktivists display a kind of “constitutional patriotism,” ⁹⁴ which provides clearer evidence that their reasoning is not solely based on private morality or merely serves as a fig leaf for furthering their private interests.

Such an appeal then serves as a functional equivalence to the ALCC: Instead of coming out in the open, letting oneself be arrested and tried in court, hacktivists can publish political statements (or collaborate with journalists/spokespersons who do this), in which they justify their actions with reference to these principles and thereby provide reasons for their illegal protests. ⁹⁵ In doing so, they communicate within the confines of public reason. Thereby, they may arguably also discharge their obligation towards the public to take responsibility for their political opinions and remain answerable to others. More importantly, however, they display fidelity to law and thus qualify for a closer prosecutorial and judicial inspection, and—as a result—are potentially subject to less severe sentences.

Since the main addressees of these communicative acts are legal experts that have acquired and internalized numerous legal texts and interpretation practices through a long educational process, it is advisable—as I said above—to remain within the confines of these interpretative “Knowing-Hows” ⁹⁶ in order to be understood and accepted as a skilled performer of these practices. For these instrumental reasons, hacktivists do well to narrow down the margins of public reason even further to the limits of legal reason, that is, principles, arguments, and interpretation strategies accepted by the legal community and practice.

In the history of hacktivism, there are various examples of such appeals: During the Anonymous Operation “Right2Rest,” the group argued in a video statement that “punishing actions that are a universal and unavoidable consequence of being human violate the Eighth Amendment” and went on to assert that “if a person literally has nowhere else to go, then the enforcement of the Denver urban camping ban against that person criminalizes them for being homeless.” ⁹⁷ In much the same vein, attorney Stanley Cohen argued as a counsel to one of the defendants that were indicted in connection with the Anonymous Operation “Payback” (one of the so-called “PayPal 14”): “The PayPal 14 are like civil rights fighters or the freedom riders of the 1960s.” ⁹⁸ “It is a pure case of internet or cyber sit-ins, it is a pure case of first Amendment activity.” ⁹⁹

At the same time, many justifications still revolve more around appeals to justice in general than around constitutional or rule-of-law principles. For example, in his “Guerilla Open Access Manifesto,” Aaron Swartz argues that

“those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world.” ¹⁰⁰

Although this statement should be seen as evidence that Swartz is not a petty criminal—especially since later in this piece he invokes the “grand tradition of civil disobedience”—it nonetheless makes it more difficult for the judicial system to assess his fidelity to law as well as his adherence to the liberal democratic system of the US. On the other hand, there are also some examples that make it virtually impossible for the prosecutorial system and the judiciary to identify them as purporting fidelity to law. These include instances that directly call into question the authority of the government or the legislature, as, for example, produced by Anonymous during OP #Payback:

“We are not concerned with legality, but with legitimacy. Those who decide our laws are the same people who [… are] selectively enforcing their own laws when it comes to ‘official’ organizations that take actions such as running a mass racketeering operation […]. We do not recognize their ‘authority’ due to this rank hypocrisy.” ¹⁰¹

According to the concept of civil disobedience, it is the obligation of the hacktivists to provide adequate indicators to the representatives of the legal order that will give the latter sufficient reason not to doubt the protester’s general fidelity to law. Only then will they be eligible for the special penal treatment that is inherent in civil disobedience. One way to do this is by adhering to the ALCC. As I have argued, however, this is not the only possible route and therefore not a necessary condition for civil disobedience. Rather, the necessary condition here is “fidelity to law,” but there are several functionally equivalent ways to demonstrate it, one being the ALCC. Other ways are imaginable, and I have elaborated here on one of them. For this way, it is by no means necessary to showcase “a calm and loving dignity befitting good citizens” ¹⁰² or adhere to some version of “respectability politics.” ¹⁰³ These may be useful to convince the public and its “rather narrow understanding of the boundaries of acceptable political protest” ¹⁰⁴ of the protester’s sincerity and decorum. They do not—and should not—influence the professional representatives of the legal order either way.

6. Conclusion

Drawing on the theoretical tradition of civil disobedience, I have shown in the course of this paper that, while anonymity violates the ALCC, it is not a necessary condition for an illegal digital protest to qualify as digital civil disobedience. Instead, it serves as a—admittedly useful—indicator for the protester’s fidelity to law.

In order to reap the prosecutorial and penal benefits that come with the label “civil disobedience,” Hacktivists have to make clear that their illegal protesting nonetheless is—among other things—within the limits of fidelity to law. I have argued that they primarily have to demonstrate this fidelity to the legal order itself, that is, its representatives, the law enforcement officers, the attorney, prosecutors, judges, and juries. Adhering to the ALCC is one—fairly convincing, though by no means foolproof—way to do this. Focusing on “the most decorous, least threatening, most easily justifiable form of political resistance, in which disobedients act publicly and accept arrest and punishment,” ¹⁰⁵ may be a sensible thing to do, depending on the situation. It may also serve to address the “sense of justice of the majority of the community.” ¹⁰⁶ However, it is neither morally required (vis-à-vis the obligation to obey the law), nor is it necessary to showcase fidelity to law.

There are other possible means to do this. I have pointed to one of them that I think is promising: Publicly appealing—through proxies—to fundamental principles of the legal order, that is, constitutional provisions, rule-of-law criteria, basic legal principles such as equity and proportionality. If Hammond had done so, his protest may still be at odds with the kind of nonviolent direct actions of Martin Luther King and others. Nonetheless, he may very well have been considered as engaging in “conscientious law-breaking,” ¹⁰⁷ which might have made a significant difference for the sentences handed out to him by the legal system.

Does this mean that all instances of hacktivism in the narrow sense should be considered digital civil disobedience, as long as the hacktivists appeal to principles of justice and higher law? Of course not. The aim of this investigation was to evaluate whether it is in principle possible to characterize certain forms of hacktivism as digital civil disobedience, notwithstanding the fact that they typically violate the ALCC. Each instance of hacktivism still needs to be closely examined by the representatives of the legal order: Do the hacktivists really comply with the three criteria of civil disobedience mentioned in Section 2? Is the appeal to constitutional provisions a mere fig leaf for furthering their private interests?

As hacktivists have an obligation to provide adequate evidence to the representatives of the legal order with respect to their fidelity to law, those representatives in turn incur an obligation to seriously consider this evidence and pass sentences that are in proportion to the symbolic nature of the disobedient act. This second obligation follows from the high threshold of democratic legitimacy, which is ultimately tied to the recognition and the consent of those subjected to its laws:

“Civil disobedience draws its dignity from this lofty claim to legitimacy of the democratic constitutional state. When state attorneys and judges do not respect this dignity, when they prosecute the disobedient as an ordinary criminal and punish him with the usual sentences, they succumb to an authoritarian legalism.” ¹⁰⁸

Along with the severity of the sentences, also their function needs to be in alignment with the symbolic and political nature of digital civil disobedience. Instead of punishing hacktivists, which not only expresses “attitudes of resentment and indignation, and of judgments of disapproval, and reprobation,” ¹⁰⁹ but also serves purposes of deterrence and retributive justice, they should rather be penalized. ¹¹⁰ The main goal here is to uphold the legal order and to secure equality before the law, thereby asserting the rule of law.

The dangers of such an authoritarian legalism do not only lie in the fact that it has a serious chilling effect especially on the forms of hacktivism, which may qualify as digital civil disobedience (what I termed “hacktivism in the narrow sense”). Moreover, as a result of this chilling effect, it may also impede crucial functions of political public spheres: Digital civil disobedience is an essentially political speech act that draws attention to grievances and thereby helps fulfill opinion formation, translation, and control functions of political public spheres in the realm of the digital. In this sense, civil disobedience qua hacktivism is “a normalized – because necessary – component of [constitutional democratic] political culture.” ¹¹¹