The UCLA Online Institute for Cyberspace Law and Policy

May 1997

I. Introduction:

Within the realm of age old power struggles, none is so familiar as the struggle between youth striving to carve out their own spheres of influence in society, and their elders invariably entrenched in defense of the establishment. From the time of Socrates, rapidly changing culture has led older generations to believe that their youth are misguided and in crisis.(1) In more recent times, youth movements such as "punk" and anarchistic subcultures may tend to prove them right.(2) As we enter the 21st century, social commentators predict a technological revolution "unlike any in history," where the proliferation of computers will permeate virtually every aspect of human interaction.(3) If we are truly at the dawn of the Information Age, then the next great struggle between new and old, between rebellious youth and authority, may take place in cyberspace.

This paper is about a new era of youth rebellion. Specifically, it is about "hackers" and efforts of the United States Secret Service to monitor and control their access to information. As discussed in greater detail within, wide disagreement exists concerning what constitutes a hacker. Generally, a hacker is one who seeks to obtain unauthorized access to computer systems.(4) The crux of the dispute arises over what motivates the true hacker; benign curiosity or more malevolent ends. If the hackers' goal is to gain the technological know-how to "effectively cripple the economy or shut down communications systems the world over," then indeed "cyberpunks hold the potential for becoming the most powerful subcultural force ever."(5) Fear of hackers' potential or asserted powers have undoubtedly fueled recent law enforcement crackdowns on hackers and the hacker subculture, while mainstream journalists contribute to the milieu by submitting headlines such as "Go Ahead, Be Paranoid: Hackers Are Out to Get You."(6)

A new era of virtual cops and robbers involving U.S. Secret Service agents is intriguing today, in part, because the federal government has been forced to expand the police powers of its Treasury Department as quickly as hackers have jumped to the forefront of journalistic fancy.(7) Intertwined with the expanded police powers of the Secret Service is a backlash from hackers and "computer enthusiasts"(8) alike, who question both the practices and goals of law enforcement. While a look at computer "criminals" is interesting in itself, of equal interest here may be an examination of protections afforded those who seek to disseminate controversial information relating to hacking. Within this essay, I will look briefly into the U. S. Secret Service's history of involvement with hackers, the practices employed by Secret Service agents to monitor and dissuade hacker activities, and some of the ways in which advocates of the free dissemination of "hacker" information have sought to challenge Secret Service enforcement practices. Following, this paper will question the implications of disputed hacker activities, and whether computer enthusiasts who self-define as hackers subscribe to a hacker ethic that would minimize societal concern over unauthorized intrusions into computer systems.

II. U.S. Secret Service Enforcement Tools and Controversial Practices:

Since expanding its mission to include "the detection and arrest of any person committing any offense against the laws of the United States relating to. . . credit/debt card fraud, computer fraud, and [and] false identification crime[s] . . .,"(9) the Secret Service has pursued and prosecuted hackers and computer enthusiasts for gaining unauthorized access to private computer systems, for copying and distributing confidential files, and for a myriad of other related activities including the unauthorized use of long distance telephone lines, and credit card fraud. Often acting in conjunction with local U.S. Attorney's offices, the Secret Service prosecutes computer criminals pursuant to federal criminal statutes such as the federal wire fraud statute,(10) fraud and related activity in connection with access devices/computers (18 U.S.C. ¤¤ 1029, 1030),(11) and the prohibition of the interstate transportation of stolen property (18 U.S.C. ¤ 2314). In addition, prosecutors sometimes rely on analogous state laws such as those prohibiting "computer trespass," as was used to prosecute a hacker in State of Washington v. Riley.(12) Worthy of note here, is that while the Secret Service is involved in the detection and prosecution of software piracy, courts may be reluctant to allow prosecutors to apply the severe criminal penalties associated with the above statutes to unauthorized copying of non-confidential, but copyrighted software.(13)

While the prosecutorial tools used by the Secret Service in pursuit of hackers is rather straightforward, some of the practices employed by the agency have invoked outrage from computer enthusiasts and guardians of civil liberties for computer users.(14) Among questionable Secret Service practices are the overly ambitious seizure of computer equipment, attempts to shut down web sites and bulletin boards for fear that they may harbor stolen information, and the liberal perusal of private electronic communications based on vague search criteria.(15) In addition, computer-user rights advocates allege that Secret Service search and seizures are routinely conducted using sealed search warrants, and while often not culminating in arrests, leave computer users without clear avenues to proceed in order to retrieve their property and restore Online access.(16) For example, in the 1990 Secret Service raid that culminated in a civil suit against the government in Steve Jackson Games, agents seized computers, 300 computer disks, and interrupted operation of the affected company's bulletin board.(17) Among the materials seized were drafts of the book "Gurps Cyberpunk," which was slated for imminent publication, magazine articles to be published, business records, and a bulletin board named Illuminati, which included newsletters, public comment on submitted articles, and both public and private electronic mail.(18) The seizures, it was discovered by plaintiffs in the corresponding civil suit, were conducted in an effort to track down a telephone company computer file (Bell South's 911 document) allegedly stolen by a Ôhacker' who posted the file for public review on his bulletin board.(19) The hacker who posted the 911 file on his bulletin board also happened to be an employee of Steve Jackson Games Inc., leading Secret Service agents to believe that the document could be hidden in Steve Jackson Games' Illuminati bulletin board. Yet due to the sealed nature of the search warrants, Steve Jackson Games "[was] not able to ascertain the reasons for the March 1, 1990 seizures until after the return of most of their property in June of 1990, and then only by the efforts of the offices of both United States Senators and the State of Texas."(20)

Perhaps the most infamous of Secret Service hacker-related blunders occurred on November 6, 1992, when the Service coordinated with a shopping mall security staff to break up a meeting of teenage hackers in the food court of the Pentagon City Mall in Arlington, Virginia.(21) The teenagers had congregated for a monthly meeting of the "2600 Club," named after the 2600 Hacker Quarterly magazine.(22) Mall security, accompanied by at least one Secret Service agent, confiscated the teenagers' bags which contained computer books and printouts, and ordered them to leave the mall. No charges were ever filed, and the Secret Service was reluctant to acknowledge their involvement, to provide any information about the raid, or to release the confiscated property. The raid has been criticized as an infringement upon the members' rights to assemble peaceably,(23) but moreover, it may be illustrative of the bizarre cat and mouse game being played between a new generation of computer-oriented rebellious youth, and high ranking law enforcement officers relegated to the roles of virtual juvenile-gang detectives.

Other clashes between computer enthusiasts and Secret Service agents have made it to court dockets and onto frequently visited web sites.(24) Those which attract significant attention often do so because they illuminate ideological differences between "corporate behemoths" and law enforcement agents on one side, and hackers and Netizens on the other.(25) The conceptual differences revolve around the extent to which computer users should have access to ideas and information which circulate through the Internet and the complex computer systems maintained by some of the world's largest corporations.(26)

III. "Watching the Watchers"(27): The Computer Denizens' Response to the U.S. Secret Service:

In the traditional story of wayward and rebellious youth, those crying for recognition from behind the walls of the age of minority go largely unrecognized, absent violent episodes or staged protest that draw public attention. While this may have been true then and now, with respect to hackers, teenage or otherwise, the story of powerlessness to respond to authority is somewhat inapplicable. Granted, some "hackers" have voiced their displeasure with federal law enforcement by using the same type of anonymous graffiti which for years teenagers have spray painted on urban buildings and bridges throughout the country.(28) Others criticize government practices that affect their peers on their own web sites, without crossing the line to online vandalism.(29) And Online access also seems to correlate with legal access, as computer-user civil liberties groups have not been reluctant to use the courts to gain information about adverse government action, and to challenge controversial Secret Service practices.

In the 2600 case from the Pentagon City Mall meeting raid, as discussed supra pages 4-5, the Computer Professionals for Social Responsibility ("CPSR") carried the torch for teenage hackers, filing a Freedom of Information Act ("FOIA") request to combat a Secret Service policy of silence. The request, which the U.S. Supreme Court has stated focuses "on the citizens' right to be informed about what their government is up to," sought information retained by the Service concerning the breakup of the teenagers, eight of whom had authorized CPSR to seek disclosure of information even if deemed confidential.(30) In 1996, four years after the breakup of the original meeting, the Court of Appeals for the District of Columbia Circuit granted the FOIA request in part, stating that the Secret Service is not entitled to a "generic" presumption that all information gathered in the course of a criminal investigation of hackers is confidential.(31)

Beyond seeking information, computer users have tangled with the Secret Service in criminal and civil courts when challenging questionable search and seizure practices.(32) Generally, the Fourth Amendment protects "people, not places," from unreasonable searches and seizures.(33) When the Secret Service or any other law enforcement body conducts a search of a hacker's home or business, it must conform with the Fourth Amendment's requirements that a warrant issue based on probable cause, and that the warrant describe with particularity the places to be searched, and the people or things to be seized.(34) A problem concerning searches that move between the real world and cyberspace is that the interconnectedness of systems in cyberspace can lead law enforcement quickly from a simple search of one party to a multi-party, multi-computer search that could encapsule the innocent as well as the guilty, and relevant evidence as well as a large amount of extraneous private information.(35) The concern voiced by Netizens is that Secret Service agents have neither the expertise nor exercise the requisite level of care to know fully where they tread when searching complex computer systems.(36) The most serious implication then, may be not for hackers caught in the act of infiltrating or pilfering information, but for those on the fringe of the hackers' domain; those Netizens enamored with the exchange of information related to hacking and the debate over hackers' rights to free access. Individuals and companies that either directly or derivatively support controversial web sites and bulletin boards, or access such sites, may be reeled in during raids similar to Operation Sundevil that take place in the online and tangible worlds. Then, due to Secret Service sealed warrant procedures, Netizens who have their computers seized often find themselves stuck in legal limbo; most are not arrested but rather kept "under investigation," while their computers remain with law enforcement. If this fear sparks images of Big Brother and GESTAPO-like practices, it pales in comparison to the fear that ran rampant during the Operation Sundevil raids, and in the media aftermath.(37)

While the Fourth Amendment will undoubtedly be the focus of most disputes over Secret Service raids on hackers, the remedies afforded Netizens under the Fourth Amendment are minimal at best. The only direct remedy stemming from a 4th Amendment violation by government agents is to have the evidence collected from the illegal search declared inadmissable during the prosecution of a hacker.(38)

In search of a better way to thwart the Secret Service, the plaintiff company in Steve Jackson Games challenged an overbroad search with the statutory remedies afforded under the Privacy Protection Act. When the Service seized company computers and shut down its web site in search of the stolen Bell South 911 file, they did so, according to the court, without "any basis for suspicion that any of the Plaintiffs had engaged in any criminal activity."(39) In response to the unlawful seizures and shutdown of its electronic bulletin board, the company sought statutory damages against the government in civil court under the Privacy Protection Act. The Act is interesting in this context because it protects against the seizure of "any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication [emphasis added]."(40) Would the act apply to electronic bulletin board operators that publish controversial information on the Internet? Steve Jackson Games indicates that it would, as the court in that case stressed the fact that much of the information seized, either in disk format, or by denying access to the Illuminati bulletin board was slated for imminent publication on the Internet.(41) Even in a case where the government has probable cause to believe that a bulletin board operator has committed or is committing a criminal offense, where that offense relates only to the "receipt, possession, communication, or withholding of such materials or the information contained therein," the Privacy Protection Act still prohibits seizure.(42) Such an extension for the protection of publishers is undoubtedly rooted in the First Amendment protections against prior restraint of the press.(43) Note also, that the Act allows pre-publication seizure of materials to be disseminated through the Internet or by other means if those materials include child pornography, or information endangering the national defense. Query then, if materials relating to hacking into computer systems could be deemed to endanger the national defense? While the government has on several occasions enunciated a fear that hackers may infiltrate Defense Department computers,(44) that fear should not carry much weight when applied to many of the rather mundane files circulating through the underground hacking world. In sum, as in Steve Jackson Games, the Privacy Protection Act may be one of several remedies afforded Netizens who publish information related to hacking, and are stymied by Secret Service interference.(45)

IV. Are Hackers Really A Threat, and Does A "Hacker Ethic" Mitigate Their Dangerousness?

If a discussion of the Secret Service's involvement with hackers is to lead to any conclusion about the efficacy of federal police action, we may have to juxtapose controversial law enforcement practices against the ideological backdrop upon which many hackers operate. A discussion of the risks hackers pose to individuals, to corporations, and to state and nation must be prefaced by noting that there is almost as much dispute over what constitutes a "hacker," as there is concerning whether they represent a new manifestation of an old social ill, or a glimpse of a bright innovative future. The way hackers are viewed inevitably depends on how they are defined, and who amongst the ranks of computer enthusiasts is excluded from the definition. A "hacker" has generally been defined by courts reviewing their pending cases as "an individual who accesses another's computer system without authority,"(46) or as one "who use[s] computers for illegal activity."(47) Others define hackers as "learners and explorers,"(48) "law abiding citizens with a deep understanding of computers,"(49) and " primarily disaffected male teenagers . . . [with] a need for technological empowerment."(50) I believe that hackers can fit each of these paradigms, and that each is worth exploring further if we are searching for a reasoned understanding of hackers and their societal worth or dangerousness.

From a significant portion of Netizens, albeit possibly a minority, comes the theory that hackers are "learners and explorers who want to help rather than cause damage, and who often have very high standards of behavior."(51) This is "the hacker ethic," which carries with it the manifesto "Thou Shalt Not Destroy."(52) Those that espouse it claim that they are an elite group of computer enthusiasts devoted to "the free wheeling intellectual exploration of the highest and deepest potential of computer systems . . . that beauty can be found in computers, that the fine aesthetic in a perfect program can liberate the mind and spirit," and finally, that information and computer access should be as "free and open as possible" to reach this end.(53) The maxim that "information wants to be free," and should be free for the taking justifies the invasion of computer systems for these hackers, who believe that they have the expertise to tread through complex systems without disrupting the networks, and that they may even detect and cure viruses on occasion. This form of electronic good samaritanism is likely the exception rather than the rule, but it is almost a universally held belief within the hacker community that information should be generally accessible, for to "hoard information slows down the development of new technology."(54) On the other hand, some hackers bent on exploration of the virtual world may justify intrusions by scapegoating incompetent corporate computer security personnel. If they can not make their systems secure, who is to blame hackers for their intrusion? A hacker arguing this point might analogize the break-in to the act of a hungry man entering an unlocked kitchen, and doing so only to smell the food, not to eat. But this is a tenuous argument, and could easily be extended to justify a world where power and bravado, not principle, govern rights of privacy and property.(55)

Even assuming that a hacker ethic does exist in some circles, how prevalent is it among today's hackers, and how prevalent need it be before it would alleviate the public's fear of damage hackers can cause?

A look at the reality of Online crime as outlined by mainstream journalists indicate that the hacker ethic is fading fast, if in fact it ever predominated among hackers.(56) American businesses lose more than $100 million yearly due to computer-related theft.(57) Among the intrusions include the theft of ten million dollars from Citibank by Russian hackers,(58) a theft that more than half of U.S. banks say that they are "very concerned" about similar repeat performances.(59) Of the losses, which critics say are vastly under-reported due to companies' desires to avoid the stigma associated with unstable network security, much can be attributed to the theft of valuable trade secrets. But if hackers believe that information truly should be free and accessible to promote the proliferation of technology, is the theft of trade "secrets" really in violation of a hacker ethic? If trade secret theft is motivated by monetary gain, and not a genuine desire to promote the spread of knowledge, then it would be hard to justify under any ethical standard. And even if a hacker's goal is to promote the progress of science, the abolition of Copyright law may not be a reasonable means to that end.(60)

Hackers argue that the hoarding of information forces others to waste time recreating what has already been done, detracting from the time they might otherwise spend innovating. But if inventors and computer programmers who create new knowledge are not allowed to capitalize on their creations by enjoying the monopoly that Copyright and Patent law gives them, the incentive to create will inevitably be removed for many. While some hackers may traverse complex corporate computer systems for the pure love of technology, it is unreasonable to believe that enough of society's elite thinkers would produce for the pure love of doing so. The realities of economic life may inhibit many who would create, whether or not they could benefit from the monopolistic powers granted by Copyright and Patent law.

Any assertion claiming that the realities of economic life do not influence hackers is also untenable. Many hackers that frown upon "crashing" computer systems and introducing viruses, implicitly approve of long distance telephone fraud as a necessary means of gaining the information which they crave. For example, Mark Abene (a.k.a. "Phiber Optik") and Eli Ladopoulos (a.k.a. "Acid Phreak"), prominent hackers in a teenaged cyberspace gang called MOD, the "Masters of Deception," focused their hacking adventures on "phone phreaking," or gaining unauthorized access to telephone company computers.(61) Like the first generation of hackers, whose ranks included the co-founders of Apple Computers, these "phone phreaks" seemed to have a fairly developed moral code with respect to hacking.(62) But this hacker ethic did not inhibit them from taking advantage of what they perceived to be an infinite supply of free long distance calling time. Although they believed in the credos "Thou Shalt Not Destroy," they did at least on one occasion cause a system to crash. On other occasions, the hackers would leave their own greetings on company systems. When Eli Ladopoulos left a greeting message within the computer of a public access television station in New York, he caused the computer to print his greeting continuously, as paper spilled throughout the television station's office. As Slatalla and Quittner described the incident, it was "just a spoof, a goof, a gag. Eli mean[t] no harm. In his mind, it's like tying someone's shoelaces together to watch them trip."(63)

Are the majority of hackers "primarily disaffected male teenagers . . . with a need for technological empowerment"? While hackers undoubtedly run the gamut from high-stakes computer criminals bent on stealing trade secrets and money, to elite "techno-geeks" who hack as a hobby and later enter the mainstream job market as programmers and trouble shooters, a significant portion does fit the disaffected teenager model.(64) If they are representative of their cohort, or of other teenage groups who act to express themselves, to gain recognition, and to taunt authority, then their actions should generally fall somewhere between the threat to national security that the Secret Service alludes to, and the benevolent intruder model that Netizens champion. If the plight of teenagers in general is cause for alarm, then today's hackers might be expected to follow trends seen with other teenage gangs, who today are more violent and criminal than any generation before them.(65) But if hacking is a hobby of the middle and upper middle classes, might not teen hackers remain insulated from the social ills that plague other teen gangs? The answers to many of these question are unclear, as is the ideal posture that law enforcement should take with these teenage cyberpunks.

Again, we may ask, could law enforcement approach "the hacker problem" in a way that could minimize negative social and societal effects? Some commentators suggest "working with hackers," treating them not as "enemies and criminals, but rather as potential helpers in the task of making [computer] systems secure."(66) But how do we differentiate between benevolent hackers who only wish to explore, and others with less noble aims?

No matter how vocal Netizens and some computer professionals may be in defense of hackers, it is safe to assume that government is not going to change its fundamental position against unauthorized intrusions, copying of trade secrets, and pilfering of long distance calling card time. Assuming hacker deterrence is the goal of government and the Secret Service, the question then becomes, is there a better way to approach deterrence than through the high profile raids and seizures of the Operation Sundevil era? Senator Tom Hayden (D. Cal.) tells an interesting story worthy of note here. He told the story of a sixteen-year-old hacker from Santa Monica, California, who was raided and sentenced to a year in a juvenile detention center for cracking a major computer company's system. About the raid and subsequent punishment, Hayden said, "[t]hat kind of high publicity just encourages other kids. This is a case, where if violence ever causes violence, then punishment causes crime."(67)

The theory that high profile Secret Service enforcement practices may not deter, but actually bolster interest in illegal hacking to a greater extent than any private bulletin board on the subject could, may not be far fetched. Hayden is not the first to enunciate the theory, as Slatalla and Quittner wrote of Abene and Ladopoulos, that following Secret Service raids "Eli and Mark ha[d] become a walking enlistment poster for hacking. MOD WANTS YOU--TO THWART UNCLE SAM."(68) One criminologist wrote on the subject that there "is little evidence to suggest that punishment will in the long run reduce any given offense, and . . . may, in fact, contribute to the growth of the computer underground."(69) Following the Operation Sundevil raids, even mainstream journalists questioned the efficacy of a hardcore "hacker crackdown," as a reporter for The Economist wrote,

"[s]uch raids have encouraged a debate over whether the cures are worse than the disease . . . In the short term, the prospect of explaining to mom and pop why armed policemen are seizing your computer will probably give pause to many a young would-be hacker. In the longer term, dramatic Dick Tracy-style raids may backfire."(70)

Hackers who have been around long enough to remember the Operation Sundevil Raids and the 2600 incident in the Pentagon City Mall confirm that attendance at 2600 club meetings multiplied ten-fold, as teens, news people, and onlookers searched out what had previously been rather obscure gatherings.(71)

So what, if anything, do we say to Secret Service agents and policy makers concerning hackers and raids? Possibly, hackers and computer-user civil liberties groups have said it themselves through the courts and on the Internet; the message being "tread lightly." If one thing is clear, it is that hackers and computer enthusiasts fascinated by the hacker mystique and related information are not going away. Many will grow up to become the next generation of leaders and policy makers in big business and government. How many will carry the lessons that they have learned about the value of information, technological empowerment, and ethics with them?

Footnotes:

(1) Berliner and Biddle, The Manufactured Crisis 11 (1995).

(2) For convenient glimpses into anti-authoritarian youth subcultures, see the films The Decline of Western Civilization (1980), and Suburbia (1984).

(3) Jeremy Rifkin, The End of Work; The Decline of the Global Labor Force and the Dawn of the Post-Market Era 13 (1995).

(4) Steve Jackson Games v. United States Secret Service, 816 F. Supp. 432, 435, fn.2 (W.D. Tex. 1993).

(5) Piglia, Paola, and Rayl, Secrets of the Subculture; countercultural movement lead by computer hackers, Omni, vol. 15, no. 2, Nov. 1992, at 58.

(6) Steve Lohr, Go Ahead, Be Paranoid: Hackers are Out to Get You, N.Y. Times, March 17, 1997, <http://nytimes.com>. See also William G. Flanagan and Brigid McMenamin, The playground bullies are learning how to type, Forbes, Dec. 21, 1992, at 184 (claiming that hacker intrusions will cost corporations and government "anywhere from $500 million to &5 billion a year, signaling "a computer crime wave of epic proportions"), and Phillip Shenon, Report Warns of Security Threats Posed by Computer Hackers, N.Y.Times, May 23, 1996 <http://nytimes.com> (asserting that hackers pose a "serious and growing threat to national security," as Pentagon computers were "attacked" as many as 250,000 times last year).

(7) It was not until 1984 that the U.S. Secret Service's mission was expanded beyond its duty to protect the life of the President and other high ranking dignitaries, to investigating computer fraud and other fraud-related crimes. See, U.S. Secret Service Home Page, <http://www.ustreas.gov/treasury/bureaus/usss/>; 2600 The Hacker Quarterly, <http://www.2600.com> See also Michelle Slatalla & Joshua Quittner, Masters of Deception; The Gang that Ruled Cyberspace 108, 116-18 (1995) (suggesting that S.S. agents are protecting high ranking officials one day and chasing hackers the next).

(8) Under the umbrella term "computer enthusiasts," we might include "Netizens," operators of private BBS services, those involved in computer-related media and electronic freedom advocacy, such as the Electronic Frontier Foundation, Computer Professionals for Social Responsibility, and perusers of magazines such as 2600 The Hacker Quarterly.

(9) U.S. Treasury Home Page, <http://www.ustreas.gov/treasury/bureaus/usss/>.

(10) 18 U.S.C. ¤ 1343 (prohibiting the use of wire, radio or television communication in interstate commerce in order to facilitate a fraudulent scheme).

(11) See Mark D. Rasch, Legal Lessons in the Computer Age, Security Management, vol. 40, no. 4, April, 1996, at 59 (discussing a 1986 congressional amendment to Title 18 section 1030, enhancing penalties for illegal hacker activities).

(12) Washington v. Riley, 121 Wash. 2d 22, 26 (Wash. 1993) (hacker prosecuted for attempting to procure long distance calling card numbers by repeatedly dialing a telephone company computer switch and entering random numbers).

(13) In U.S. v. LaMacchia, a U.S. District Court in Massachusetts interpreted the U.S. Supreme Court's decision in U.S. v. Dowling to hold that where copyright law is applicable to acts such as unauthorized software piracy, prosecutors must rely on penalties enunciated within Section 506 of the Copyright Act of 1976, and not on criminal statutes such as the federal wire fraud statute. United States v. LaMacchia, 871 F. Supp. 535, 545 (D.C. Mass. 1994).

(14) Among the most famous of raids is "Operation Sundevil," during which Secret Service agents seized 42 computers and 23,000 floppy disks nationwide in 1989 and 1990. Jorge L. Contreras, Jr., Book Review: The Hacker Crackdown: Law and Disorder on the Electronic Frontier, by Bruce Sterling, 6 Harv. J. Law and Tec. 421, 412 (Spring 1993), and Phillip Elmer-Dewitt, Cyberpunks and the Constitution, Time, April 8, 1991, at 81.

(15) See, Steve Jackson Games, 816 F. Supp. at 436,443; Computer Professionals for Social Responsibility v. United States Secret Service, 72 F.3d 897, 900-901 (U.S. Ct. App. D.C. Cir. 1996). See also Slatalla & Quittner, supra note 7, at 127 (comparing Secret Service raids to scenes from George Orwell's 1984).

(16) The Operation Sundevil raids shut down dozens of computer bulletin boards, yet "turned out to be a bust of another sort [for Secret Service agents]," because almost a year after Operation Sundevil, the raids had resulted in only one indictment. Mark Lewyn and Evan I. Schwartz, Why the Legion of Doom has Little Fear of the Feds, Business Week, no. 3209, April 14, 1991, at 31.

(17) Steve Jackson Games, 816 F. Supp. at 437.

(18) Id. at 439-440.

(19)The Bell South 911 file was the center of considerable attention in the early 1990's, as it was introduced as evidence in the prosecution of Robert Riggs, for obtaining stolen information posted on a hacker bulletin board. United States v. Riggs, 743 F. Supp. 556, 558 (N.D. Ill. 1990). In Steve Jackson Games, the file was posted on a bulletin board entitled Phoenix, which was unrelated to the Illuminati bulletin board seized by the Secret Service. Steve Jackson Games, 618 F. Supp. at 435-437.

(20) Id. at 443. Note also, that once the company's property had been returned, it was discovered that electronic communications unrelated to the 911 file investigation had been unlawfully deleted. Id. at 438.

(21) The case gained further publicity when Computer Professionals for Social Responsibility filed a Freedom of Information Act to expose Secret Service involvement in the raid. Computer Professionals for Social Responsibility v. United States Secret Service, 72 F.3d at 900-901; Computer Professionals for Social Responsibility v. United States Secret Service, 1994 U.S. Dist. LEXIS 20054 (D.D.C. July 1, 1994).

(22) Since the incident in Arlington, Virginia, 2600 magazine has maintained extensive Online records of Secret Service practices concerning hackers and their meetings, <http://www.2600.com>, see also The 2600 Case <http:www.epic.org./computer_crime/2600>, and Secret Service Search Warrant Affidavit <http://www.io.com/ss/affidavit.html>.

(23) See, the Computer Professionals for Social Responsibility's Press Release <http://www.cpsr.org>.

(24) See e.g., Riggs, 743 F. Supp. at 557 (defendants Robert Riggs, a.k.a. hacker "Prophet," and Craig Neidorf, a.k.a. "Knight Lightning," prosecuted under federal law for stealing, and/or receiving stolen Bell South 911 file from a hacker bulletin board), United States v. Denich, 1992 U.S. Dist. LEXIS 6996, *1-*8 (S.D.N.Y. 1992) (21 year old hacker's motion to suppress post arrest statements made to Secret Service agents succeeds based on agents' failure to advise defendants of Miranda rights), see also 2600 the Hacker Quarterly,< http://www.2600.com> for U.S. v. Cummings, and U.S. v. Mitnick, (hackers imprisoned for possession of "access devices" used to gain unauthorized entry into computer systems).

(25) Contreras, supra note 14, at 421-423 (citing Sterling's viewpoint sympathetic to hackers, opining that the true villains of this story are corporate officers who unnecessarily guard their systems from hackers who wish only to explore and learn, not to destroy).

(26) For further discussion on hackers' claims concerning a right to free access to information, and for discourse on the hacker ethic, see infra pp. 14-18.

(27) "Watching the Watchers" is a subtitle on 2600 Magazine's web site devoted to chronicling Secret Service involvement with hacker activities <http://2600.com>.

(28) If the Internet can in fact be conceptualized as a city, then the virtual graffiti posted by hackers on government web sites is analogous to spray painting "Central Stupidity Agency" or "U.S. Department of Injustice" on the steps of the Capital Building in Washington D.C. See, Hackers Vandalize CIA's Web Page, N.Y. Times, September 19, 1996; and Hacker Vandalizes Web Site of U.S. Justice Department, N.Y. Times, August 18, 1996 <http://nytimes.com>.

(29) While underground hacker cites are perpetually waxing and waning in popularity, one Internet service provider that had long been regarded as a "hacker haven," shut down its services in July, 1996. The service, called Mindvox, was founded in 1992 by two former members of the notorious Legion of Doom hacker collective. Katherine Cavanaugh, Mindvox, Long a Haven for Hackers, Signs Off, N.Y.Times, July 13, 1996 <http://nytimes.com>. For glimpses of individual postings relating to hackers, see e.g. <alt.newsgroups.hackers>.

(30)Computer Professionals For Social Responsibility, 72 F.3d at 904.

(31) Id. at 906. Interestingly, the government argued unsuccessfully that hackers represent a threat serious enough to computer networks that fear of hackers' retaliation should justify an inference that all information gained during investigations must receive confidential treatment. Id.

(32) Steve Jackson Games, 816 F. Supp. at 432; Riggs, 743 F. Supp. at 556; and LaMacchia, 871 F. Supp. at 535

(33) United States v. Katz, 389 U.S. 347, 351 (1967).

(34) While the warrant requirement has been eroded over the years by a series of "emergency exceptions," in the case of ongoing investigations of hacker activities it seems unlikely that a warrant based on less that probable cause would pass constitutional muster. But see e.g. Warden v. Hayden, 387 U.S. 294 (1967) (no warrant required in cases of "hot pursuit"), and Schmerber v. California, 384 U.S. 757 (1966) (warrantless seizure of evidence permissible if evidence of crime is likely to disappear before warrant can be obtained).

(35) For a look into an extreme, but plausible hypothetical search of cyberspace, see Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L. J. 1093 (Jan. 1996) (describing a Net-wide search, which law enforcement could use to scan for electronic contraband anywhere on the Internet).

(36) Lewyn & Schwartz, supra note 16 ("[c]omputer crimes often span the country, calling for tricky coordination of far-flung law-enforcement agencies"); Computer Hackers; U.S. v. Zod, The Economist, Sept. 1, 1990, at 23 (opining that in cases brought against hackers such as 20-year-old Craig Neidorf, "[s]imple incompetence is the most straightforward problem facing the computer police").

(37) In the aftermath of the Operation Sundevil Raids, the administrator of the bulletin board Zygot wondered, "[s]hould I start reading my users mail to make sure they aren't saying anything naughty? Should I snoop through all the files to make sure everyone is being good? The whole affair is rather chilling." Dorothy E. Denning, Concerning Hackers Who Break into Computer Systems, paper presented at the 13th National Computer Security Conference, Wash., D.C. Oct. 1-4, 1990, at 13 <http://www.cpsr.org>, quoting Emmanuel Goldstein, For Your Protection, 2600 Magazine, Vol. 7, No. 1, Spring 1990.

(38) See e.g. United States v. Morrison, 449 U.S. 361, 367 (1981) (an illegal search will not even result in the dismissal of an indictment as a remedy for police misconduct).

(39) Steve Jackson Games, 816 F. Supp. at 435.

(40) 42 U.S.C. ¤ 2000aa(a).

(41) Steve Jackson Games, 816 F. Supp. at 439-440.

(42) 42 U.S.C. ¤ 2000aa(a)(1).

(43) In 1931 the U.S. Supreme Court held in Near v. Minnesota that a "chief purpose" of the First Amendment was to prevent pre-publication restraints. 283 U.S. 697, 673 (1931). Forty years later, in New York Times Co. v. United States, the Supreme Court held that even the publishing of a secret Defense Department study on the war in Vietnam should not be enjoined prior to publication. 403 U.S. 713, 714 (1971). Unresolved in that case, was the possibility of whether pre-publication censorship would be appropriate if the government could prove that the publisher was a receiver of stolen goods, as might be the case when a hacker publishes a stolen file on the Internet. Id.

(44) In Steve Jackson Games, Secret Service agents stated their concern that the hackers who had stolen the 911 file "were attempting to utilize a decryption procedure whereby unlawful intrusions could be made to computer programs including the Defense Department." 816 F. Supp. at 436. See also Government Concerned After Hackers Vandalize U.S. Department of Justice's Web Site, N.Y. Times, August 18, 1996 <http://nytimes.com> (sparking the creation of the department's "cyberwar" center to combat intruders); Justice Site Intrusion Part of Growing Trend, N.Y.Times, August 24, 1996 <http://nytimes.com>; and Shenon, supra note 6 (enunciating the fear that some hackers may be working for foreign countries which are interested "in obtaining military research data," or other information which could threaten national security).

(45) Steve Jackson Games Inc. ultimately recovered $50,000 in statutory damages from the Secret Service for the unlawful seizure of its computer disks and electronic bulletin board. That's 50K, The National Journal, vol. 25, no. 13, March 27, 1993, at 769.

(46) Steve Jackson Games, 816 F. Supp. at 435, fn. 2.

(47) Riggs, 967 F.2d at 562, fn. 2. The court in Riggs did acknowledge that "the term can also be used to describe legitimate computer users." Id.

(48) Denning, supra note 37, at 1.

(49) Contreras, supra note 14, at 421 (citing author Bruce Sterling's view on hackers).

(50) Id.

(51) Denning, supra note 37, at 1.

(52) Denning, supra note 37, at 1.

(53) Bruce Sterling, The Hacker Crackdown: Law and Disorder on the Electronic Frontier 53 (1992).

(54) Comment made by a 17-year-old hacker and computer programmer at a monthly meeting of the 2600 Club, Los Angeles, California (February, 1997).

(55) Slatalla and Quittner are quick to point out in Masters of Deception that this hacker argument would rarely be accepted by reasonable adult minds, for to do so would lead to a world where "the hunter may soon find himself as the hunted." Slatalla & Quittner, supra note 7, at 75.

(56) Supporters of the theory that hackers are predominantly benevolent explorers have received harsh criticism from commentators on the other side of the ideological spectrum. In response to Dorothy Denning's support of the "hacker culture," one commentator wrote, "In 20 years of interviewing malicious hackers, I have found that they . . . lie, cheat, exaggerate, and steal, as a matter of course. Understanding the hacker culture does not mean that we must accept the hackers' "program" and values. Donn B. Parker, et. al., Colleagues Debate Denning's Comments, Communications of the ACM, March, 1991, at 33.

(57) Jon Swartz, Modern Thieves Prefer Computers to Guns; Online Crime is Seldom Reported, Hard to Detect, S. F. Chron., March 25, 1997.

(58) Joseph L. McCarthy, Cyberswindle! Computer hacking, Chief Executive, no. 113, May, 1996, at 38.

(59) Swartz, supra note 57.

(60) For general support of Copyright law, see e.g., White v. Samsung Electronics, where 9th Circuit Judge Kozinski wrote, in part, "[p]rivate property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of the people to the fruits of their labors." J. Kozinski, in dissent, 989 F.2d 1512, 1513 (9th Cir., 1993), cert. denied 113 S.Ct. 2443 (1993).

(61) See generally Slatalla & Quittner, supra note 7. For more on "phone phreaking," see Barbara Herman, Yacking with a Hack; Phone Phreaking for Fun, Profit, and Politics, Teleconnect, vol. 10, no. 8, August 1992, at 60, and Katie Hafner, Kevin Mitnick, Unplugged, Esquire, vol. 124, no. 2, August, 1995, at 80 (on a notorious computer hacker whose humble beginnings started in phone phreaking).

(62) Swartz, supra note 57.

(63) Slatalla & Quittner, supra note 7 at 95.

(64) See Herbert Buchsbaum, Revenge of the Nerds, Teenage Computer Hackers, Scholastic Update, vol. 127, no. 1, Sept. 2, 1994, at 14.

(65) Rita Kramer, At a Tender Age, 7 (1988); see also Catherine J. Whitaker & Lisa D. Bastian, Teenage Victims: A National Crime Survey Report (U.S. Dept. of Justice, Office of Justice Programs, Washington, D.C.) (1991).

(66) Denning supra note 37, at 10.

(67) Conversation with Tom Hayden, on the campaign trail during the 1997 mayoral race in Los Angeles, California (January 23, 1997).

(68) Slatalla & Quittner supra note 7, at 122.

(69) Denning, supra note 37, at 9, quoting Jim Thomas, Review of the Cuckoo's Egg, Computer Underground Digest, Issue No. 1.06, April 27, 1990.

(70) Computer Hackers; U.S. v. Zod, supra note 36.

(71) Conversation with a hacker at a February, 1997 meeting of the 2600 Club in Los Angeles, California.

** Special thanks must go to Professor Stuart Biegel at the UCLA School of Law, who sparked my interest in the world of hackers, and provided invaluable guidance along the way.