“‘What do you read, my lord?’ ‘Words, words, words.”
— Shakespeare, Hamlet
“Sticks and stones may break your bones but words will never hurt you.”
— unsatisfying parental advice
In no time in history have words been as powerful, as fearful, or as numerous as they are at this very moment. We live in the era of words.
The tale of Weev's life, even before this particular chapter begins, is bound up with the terrible power of words. Weev, worse known as Andrew Auernheimer, is a notorious internet troll serving 41 months for hacking and identity theft, despite having done neither of these. I don't mean that he is innocent —Weev is in no way innocent — but that the things he did were neither hacking nor identity theft.
I must say at once that this man is someone I count as a friend. I have written him and sent him a book, which I doubt he has received. He has spent much of his recent time in solitary, and is being punished with various forms of isolation available to his captors. I can't write about my friend's incarceration with detached journalistic distance. I won't pretend to, nor even that the laws he is convicted of breaking are neutrally distant things. They are laws that have dogged my life and my community for years, incoherently and violently striking down computer experts like car accidents or cancer. They are a hated and random fate.
The facts of the matter are this: Weev and Daniel Spitler found that AT&T had put some of their iPad customer information onto the unguarded web. As two members of the group “Goatse Security,” they used a PHP script to download over 114,000 IDs and emails and gave them to Gawker, who wrote about the availability of the data. For this, Spitler pled out and Weev, convicted of two felony counts in New Jersey, is serving a sentence of 41 months in Allenwood Low, a federal prison.
AT&T did not come off well in this affair, and having its mistakes aired by Gawker didn't make things better. It seems fair to guess they were very angry at how this fairly minor breach of user security was treated in the media. AT&T was #11 on the Fortune 100 list of 2013, with too many millions of customers to comfortably conceive.
It is worthwhile to note that Gawker didn't publish the information in question, and neither did Weev and Spitler. AT&T, in all their might, published their customer's information. In doing so, AT&T broke no laws. The information, shared with them by their customers, was theirs to do with at they pleased, and they pleased to put it on the open web.
Courtrooms still have something of a mysterious otherness about them, since you are often cut off from the world. They are still describable with mere language, since you're not allowed to bring a camera. They are an architecture of emotion more than use, meant to make you feel something about what goes on inside them.
For the hearing of Weev's appeal at the Third Circuit Court of Appeals in Philadelphia, the court was hung with a halo, and white ring of light in the center above all of our heads, with a somber and thin carving that read "Justice is the Guardian of Liberty," much like the outer cladding of the building pictured above. Three robed judges walked in, a line of rustling black from the stage left. We all stood in ritual, again placing the emotional above the functional. They all sat before thin microphones, and indicated that proceeding could begin.
Orin Kerr, one of Weev's lawyers, stepped to a podium that elevated him about the gallery, but still below the raised dias of the judges. (Weev had four lawyers attending his appeals hearing on Wednesday March 19th, which he could not, the right to attend your trial not applying to appeals.) He explained the reasons to overturn Weev's conviction to the panel of three figures.
There was no unlawful access in what Weev did, Kerr explained. Kerr made the point that if you publish something on the web, you’re authorizing people to see it, read it, grab it, and so on. There was much back and forth —an appeals hearing is more like an aggressive conversation than a traditional trial. The judges picked at Kerr about ideas, like what authorization is, or a code-based restriction on access. On the whole they seemed receptive to Kerr's arguments, having read through pages of briefs from both sides before anyone met in person. They seemed to save their harder questions for the government's lawyer, who stepped up next.
“But you look at the testimony of Daniel Spitler and the steps he had to take to get to this wide open Web and I’m flabbergasted that this could be called anything other than a hack,” said that government lawyer, Glenn Moramarco, in his time to argue. He spoke with an overly precious feigned ignorance of his own case. “He had to download iOS to his computer, he had to decrypt it,” Moramarco went on, then, throwing his hands in the air, declared that he couldn't understand what the man he'd pursued had done next. Something mysterious and unpleasant for sure; a witchery of some kind.
At the heart of the charges was this word, hacker. One who hacks, who is hacking. Hacking is an unsettled word.
Kerr wrote about it in an unrelated argument he is having elsewhere with the government. He talked in his memorandum about what occasions on which the government could hack a remote computer in the course of a court-authorized investigation. What should require a warrant? What should require multiple warrants?
The government replied to him, and in their reply took issue with the word itself:
On language - Professor Kerr repeatedly uses the word "hacking" in his
memorandum to describe what the government is seeking to do here. The
Dictionary definition of a hacker is "a person who illegally gains
access to and sometimes tampers with information in a computer system."
See, m-w.com. As in the physical world, the government will, from time
to time, need to search computers involved in criminal activity in order
to fulfill its public safety mission. We have made our proposal to the
Committee to facilitate the process of seeking court authorization for
such searches where required under the law.
In a later memorandum, Kerr gave this (what I read as) somewhat testy reply:
Also, to the extent the Merriam-Webster Dictionary is our guide, it is
perhaps worth noting that the definition Mr. Wroblewski quotes is only
the fifth and last alternative definition of the word hacker.
The first and primary definition provided by the Merriam-Webster
Dictionary is “a person who secretly gets access to a computer system in
order to get information, cause damage, etc.” See
http://www.merriam-webster.com/dictionary/hacker. Based on that
definition, I believe the word is used accurately in this context. But I
am happy to switch to a less controversial term, such as “remote-access
network searches,” if others prefer.
The OED gives us this for hacking, not for the first definition, but for the first one related to technology: “The use of a computer for the satisfaction it gives; the activity of a hacker” This cross-references to:
A person with an enthusiasm for programming or using computers as an end in itself. colloq. (orig. U.S.).
To those who call themselves hackers, hacking is clever misuse of any technology. Programmers call themselves hackers, computer security people do as well. People who build keyboards and modify their roombas call themselves, and are called by others, hackers. For many years I wrote and spoke about hacking the human body, with everything from implanted technology to drugs and vaccines. Hacking is about play and modification and misuse. Sometimes it is about breaking things, getting at guarded information, copying it or changing it. Hacking is always, at some level, about fun.
CFAA (Computer Fraud and Abuse Act) is the hacking provision, but in some interpretations that includes violating the terms of service on a website. So if you lie about your age on social media, you may be hacking. This is obviously not hacking.
For the government and much of the media, hacking has dark connotations of inscrutable computing powers that verge on mystical.
This is not wholly wrong. Spitler wrote and used a program, a short one, called a script, to make something happen in the world. In this case he, and later Weev, gained more information than they could have by hand in weeks or months. They could likely have kept grabbing, but they had enough to prove their point, enough for Weev to take to Gawker. Programs are the spells of the age, words of power arranged by adepts that make our world run, and Weev is, for the purposes of AT&T and the government, a rogue adept. Most people don't understand how the computers that run their lives work, making those who do understand something like witches. Armed with only words these hackers can steal or stop physical processes, or in the case of Stuxnet, make them spin dangerously out of control.
For the unempowered, this can be an age of hateful magics.
If we didn't need them to keep modern infrastructure doing the things that keep everything moving, if they didn't keep the planes up and the trucks and ships moving and the power flowing, it would be tempting to take the hackers and the coders and burn them for witchery.
Then theres the second charge -- identity theft. In this charge we are reduced to little more than an ID number and an email, perhaps not even our main email. As hacking has widened, so identity has shrunk. What are we? Far from the rich textures of our lives, we are reduced to a vote (red or blue), to opinions that must fit in phone polls, and in the case of the AT&T hack, nothing more than a string of numbers and an email address. Furthermore, our identity is not our own. We are not the victims when our data is stolen -- the corporations for whom our identity is a work property are the usual legal victims.
Our identities are a political commodity of government, an economic commodity for corporations. The stories of our lives and our families have vanished.
The other way Weev's conviction could be reversed, the one the three panel judge was more interested in, is on the grounds of where the case was brought. While less satisfying, this is perhaps equal in importance to the CFAA. Because of the reach of Gawker's words, because everyone could see what AT&T had done, and what Weev had done, the lawyers for the American government argued that Weev could be tried by any federal court in the world -- practically 50 states, and perhaps a territory here and there. This word is venue in the legal language, the place where you can be charged and jailed, awaiting trial. Weev is being tried in New Jersey. He downloaded the material in Arkansas, the server was god knows where, Gawker is in New York. This case is in New Jersey because the government claims that this kind of ethereal crime, internet crime, happens everywhere in the world at once, can be prosecuted anywhere.
Legal guilt has always been an idea with physical dimensions. Something happens in a place at a time, and it is weighed against the laws of that place at the time. This is jurisdiction -- a much argued concept in the law. It brings to the law a sense of some scarcity. If I commit a crime in Texas, I am not guilty in California. I must be removed to Texas to face justice. Because Gawker could be read everywhere, because the AT&T server could be accessed anywhere, this is a crime of the ether, with no limits of jurisdiction, no scarcity in the law. In theory, there is no reason Weev could not be tried by 49 more federal prosecutors by this logic, other than the government is too sensible to do that. This idea troubled the judges, as it should.
For the government to be able to try crimes anywhere it wants, for jurisdiction to be infinite, is terrible. The limiting of jurisdiction to particular venues is meant as a check on the government's power, a limit to prosecution to make sure they choose to prosecute the most important cases, which Weev's clearly is not. Being able to game the venue also means uprooting the defendant as they did in the case of Weev. A defendant can be moved far from family and friends, from helpful witnesses, familiar surroundings, the community that knows them. Weev gained support in New York, and this probably didn't make a difference in the outcome of his case, but it sets a dangerous precedent to make jurisdiction as magical as the ethereal perception of the internet.
Then there is the matter of the terrible defendant himself. Weev pointed out to me long before he went to prison that by doing this act and giving it to Gawker, he and Spitler Goatse'd the greatest number of people in history in one go. How many innocent and curious new readers, as the story spread, googled the name of “Goatse Security” (motto: Gaping Holes Exposed) to find for the first time the notorious meme image of a bent over man spreading his anus to unlikely proportions, bedecked with a wedding ring, and his uncircumcised penis hanging casually in the background? Weev carefully did something upsetting to uncountable people that had nothing to do with computer hacking at all.
Weev is that most controversial of the internet's creatures, its native trickster, the troll. These are the days of the trolls, from the masses verbally assaulting outspoken women and people of color, to the strange swarms of Anonymous, masked and marching triumphantly down the streets with signs proclaiming Long Cat to be long.
Trolls, like the government, also play with the power of words. Their words aren't backed with the violent intentions of an empire. Trolls use words as sticks and stones, pelting and poking and playing with whomever takes takes their fancy. At its best, trolling is masterful critique, the satire that exposes hypocrisy and assails power with uncomfortable truths. At worst, it exposes the vulnerable and hounds them into suicide. Most trolling isn't either of these, it's powerful word play fired off at other people online, veering between humorous and hateful, often blurring and confusing the two, even for the troll.
Trolling is unsettled business. No one is quite sure if trolls are villains or heroes, and how much their upsetting speech should be protected, how much they should be unmasked and punished. We don't know yet how powerful they are, or how best to counter them as they become harmful. In this realm of doubt and discomfort, our defendant is a master.
Weev is a short man of slight build, and wirey. He has clear brown eyes, and moves in short, abrupt physical phrases that give him a twitchiness. He throws people off, stands too close, or not close enough, so that you have to move in to hear him. He laughs too loud and too long. His brain is a cavern of facts, which he can bring to mind quickly, and generally does to cause as much offense as possible. Weev has an impressive intellect, employed as it is towards the general discomfort. His hair and beard, fine and unkempt, give his head the feel of being too large for his body. His skin is pale, and he often talks like a white supremacist, at least around people that are likely to react to such things.
Weev lives like half of an equation, half in the concentrated brown eyes and beard in front of you, and half in what you're about to say to him, after he's done trying to offend. What you say next will shape him, shape what the interchange will make in the world. For those that don’t engage his strange opinions, he has a moment of disappointment that is also calming. He is perhaps slightly less himself, not more, but his self can disengage and relax. The rest of the time he is like a creature dancing with your own fears, your horrible secret beliefs about how the world is, your hateful longings. He is a witch for this century, a perfect reprobate bearer of our sins and our ignorance.
Weev is no hero, but he's also no less of one than many whose popular facades would never have survived the prying of internet scrutiny. Heroes have always been something you didn't want to look too closely at, and we live in an age where examination begins at too close and goes in from there.
This whole case has become his greatest troll yet, his greatest wordplay. The reprobate has looked at America and asked if our words of law still contain justice, or mere infinite violence.