Featured Article: Hacktivism and the First Amendment: Drawing the Line Between Cyber Protests and Crime

Volume 27 of the Harvard Journal of Law & Technology features a student Note by Xiang Li that addresses some of the First Amendment implications of "hacktivism," which Li broadly defined as the “combination of grassroots political protest with computer hacking through the nonviolent use of illegal or legally ambiguous digital tools [to pursue] political ends."

Li's Note, Hacktivism and the First Amendment: Drawing the Line Between Cyber Protests and Crime, argues that while hacktivist activities my not squarely fit within the purview of the First Amendment currently, over time these activities may evolve to a point in which a "categorical prohibition on all forms of hacktivism may sweep up socially productive uses of cyberattacks as a form of protest."

A portion of the Note, with footnotes redacted, appears below:

Does hacktivism constitute a legitimate instrument of protest in twenty-first century America? This Note examines the viability of invoking the First Amendment as a defense to the prosecution of  hacktivism, specifically in the form of cyberattacks, under the Computer Fraud and Abuse Act (“CFAA”). Although existing forms of cyberattacks are unlikely to merit First Amendment protection, this Note argues that hacktivism may evolve over time to fall within the purview of First Amendment protection. A categorical prohibition on all forms of hacktivism may sweep up socially productive uses of cyberattacks as a form of protest.

The argument proceeds in four parts. Section II describes the various forms of cyberattacks currently used by hacktivists, as well as the potential criminal liability for hacktivism under the CFAA. Section III examines the primary obstacle to, and secondary arguments against, invoking First Amendment protections for hacktivism as free speech. Section IV presents two of the central premises underlying the rise of hacktivism and discusses the need to reconceptualize what is currently a privatized cyberspace to make room for public forums that can provide specific access to a target’s online property. Additionally, Section IV discusses the possible evolution of hacktivism to include cyberattacks that generate pop-up windows to communicate protest messages. Such a mechanism could raise the possibility of First Amendment protection whereby the cyberattack constitutes protected speech and the pop-up window qualifies as a public forum, akin to a “cyber sidewalk” adjacent to the target’s online property. Section V concludes.