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>C O M P U T E R U N D E R G R O U N D<
>D I G E S T<
*** Volume 1, Issue #1.19 (June 26, 1990) **
** SPECIAL ISSUE: MALICE IN WONDERLAND: THE E911 CHARGES **
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MODERATORS: Jim Thomas (Sole moderator: Gordon Meyer on vacation)
REPLY TO: TK0JUT2@NIU.bitnet
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
information among computerists and to the presentation and debate of
diverse views.
--------------------------------------------------------------------
DISCLAIMER: The views represented herein do not necessarily represent the
views of the moderators. Contributors assume all responsibility
for assuring that articles submitted do not violate copyright
protections.
--------------------------------------------------------------------
This issue is the concept outline of one section of a paper to be submitted
to the Midwest Sociological Society's annual meetings in 1991 and will
ultimately be submitted for publication. The intent of the paper is to
develop a discourse analysis of how "social facts" are given "legal
meanings." The saliency of the current crackdown on alleged "computer
crime" seems an excellent way of tapping the clash between new meanings and
old definitions, and how courts become the battlefield for over these
meanings.
This draft is not copy-protected and may be used as appropriate.
The prose and ideas here remain tentative and incomplete, and will be refined.
It is circulated for conceptual, theoretical, and bibliographic
comments.
********************************************************************
THE SECRET SERVICE, E911, AND LEGAL RHETORIC:
MALICE IN WONDERLAND?
Jim Thomas
Department of Sociology
Northern Illinois University
DeKalb, IL 60115
(28 June, 1990)
________
Concept outline for larger paper to be submitted at the Midwest
Sociological Society annual meetings, 1991.
THE SECRET SERVICE, E911, AND LEGAL RHETORIC:
MALICE IN WONDERLAND?
"When I use a word," Humpty Dumpty said, in rather a scornful
tone, "it means just what I choose it to mean--neither more nor
less."
"The question is," said Alice, "whether you can make words mean
so many different things."
"The question is," said Humpty Dumpty, "which is to be
master--that's all" (Carroll, 1981: 169).
Law is more than simply assuring public order. It is also, as White (1984)
argues, "action with words." The rhetoric of law is played out in the
drama of the courtroom, and the denouement of the play is scripted by the
language of statutory and case law, indictments, and the talk of the
courtroom performers (Nichols, 1990; Thomas, 1983, 1989).
- 1 -
Part of this language game involves a battle over competing definitions,
meanings, and nuances that may be unrelated to "facts," and instead
replaces facts with rhetoric, or a style of persuasion. The language of
indictments and how evidence is presented provides one window through which
to observe this rhetorical battle. Indictments are the means by which a
"bad act" is transformed into a formally sanctionable one by creatively
linking the act to the law that it ostensibly violates. A recent federal
indictment of an alleged computer hacker provides on example (U.S. v. Rigs
and Neidorf, 90-CR-0070, Northern District of Illinois, Eastern Division).
(For a background on the issues involved, see especially Barlow, (1990),
Denning, (1990), Goldstein, (1990), Markoff, (1990), and Schwartz (1990).
This outline is divided into two parts. Section one first presents formal
"indictment talk" and that to which it speaks. The second section, not
included here, will provide a semiotic/deconstructionist analysis.
The indictment begins with a degradation game, one in which the credibility
and character of the defendant is attacked because of a presumed deviant
behavior and association with deviant groups. The goal is to stigmatize
hackers such that prejudicial meanings are imposed. It is a clever
linguistic trick that creates a tautology that defines the guilt of the
defendant by recursing back to the allegation in a manner that produces
linguistic "evidence of guilt." This would be analogous to calling an
alleged murder a "murderer" in court, rather than requiring that the label
must first be demonstrated to be true. In short, the "thing" becomes the
"name:"
- 2 -
5. _Computer Hackers_ - As used here, computer hackers are
individuals involved with the unauthorized access of computer
systems by various means. Computer hackers commonly identify
themselves by aliases or "hacker handles" when communicating with
other hackers.
The rhetoric first attempts to transform the conventional and broader image
of "hacker" into one that is malignant in a way that will allow anyone
associated with the label to be, by definition, stigmatized as a criminal.
Yet, there is considerable evidence that the term does not, in itself,
refer to an illegal activity, and that many who consider themselves
"computer hackers" do not engage in computer trespass, whether unauthorized
or not.
The assumption that all computer hackers are intent on committing criminal
trespass or fraud distorts the nature of the activity. Only the most
extreme examples come to the attention of law enforcement officials and the
public, and this obscures the complexity both of hacking and of the CU. In
its broadest sense, hacking is the dual process of obtaining and using
sufficient mastery of computers and programs to allow resolution of a
computer problem for which no previous knowledge or guidance exists. The
Hacker's Dictionary, a text file widely circulated on BBSs, provides this
definition:
- 3 -
HACKER %originally, someone who makes furniture with an axe% n.
1. A person who enjoys learning the details of programming
systems and how to stretch their capabilities, as opposed to most
users who prefer to learn only the minimum necessary. 2. One who
programs enthusiastically, or who enjoys programming rather than
just theorizing about programming. 3. A person capable of
appreciating hack value (q.v.). 4. A person who is good at
programming quickly. Not everything a hacker produces is a hack.
5. An expert at a particular program, or one who frequently does
work using it or on it; example: "A SAIL hacker". (Definitions 1
to 5 are correlated, and people who fit them congregate.) 6. A
malicious or inquisitive meddler who tries to discover
information by poking around. Hence "password hacker", "network
hacker".
A computer programmer's attempt to help a colleague enter a system when a
password has been lost or forgotten, de-bugging a copyright software
program, or testing a system's security are examples for which a benign
form of hacking is both required and considered acceptable. Nonetheless,
this deceptive definition was successful, for it convinced Judge Nicholas
Bua that the prosecutor's definition was the most common, would be unlikely
to confuse a jury, and was not prejudicial (See Memorandum Order in CuD
1.16).
Another rhetorical ploy in this same passage is the attempt to connect the
use of aliases with deviant activity. Pseudonyms are widely used on BBSs,
a