Hacktivism, Anonymity, and Privacy

Olivier Sylvain in Concurring Opinions (blog), September 10, 2011

Media Source

posted by Olivier Sylvain

On Friday evening, within hours of posting U.S. Marshal Service mugshots of alleged members of Internet “hacktivist” group Anonymous, TalkingPointsMemo.com became the target of a relentless “distributed denial of service” or DDoS attack. According to a statement released by TPM founder and publisher Josh Marshall on TPM’s Facebook page, visitors could not access the site a little after 5 p.m. eastern time. While no one knows for sure, TPM has inferred that Anonymous or people affiliated with the group are probably responsible for the attack.  (That TPM turned to Facebook to publish a statement is ironic because Anonymous has vowed to shutdown the social networking site later this fall.) The TPM site remains down as of this posting.

According to Marshall, TPM filed a Freedom of Information Act request for the mugshots earlier this summer, and posted them as soon as they obtained them. For the past six years, according to Marshall, the news site has routinely “published mugshots of numerous people accused or convicted of various crimes” that are the subject of its reporting. I’ve clicked through the photos of hypocrites and hucksters in elective office as well as random mugshots of mobsters and celebrities to satiate an admittedly morbid curiosity. TPM, as with many other major news organizations, knows this. The questions for TPM are ethical and legal: what is it about these admittedly alluring photos of the smirks, glares, and shock typical of mugshots that adds to the story, and justifies the ostensible invasion of privacy?

This episode in vigilante bullyism comes only months after members of Anonymous were arrested for the DDoS attack on PayPal last December. The group launched this earlier attack to punish PayPal for rashly severing its commercial ties with Wikileaks, the whistle-blowing entity led by media darling Julian Assange, soon after Wikileaks released sensitive U.S. State Department cables.

The more you pay attention, the more this most recent affair sounds like a convoluted high-tech inside-baseball soap-opera. But, at bottom, this case stands as another ambiguous artifact in the persistent question about the efficacy of government-promulgated laws in relation to the Internet. In this case, sophisticated vengeful hackers were the victims of overzealous investigative journalism and, get this, entitled to government-promulgated privacy protections. Whether they want those protections invoked, however, is another question. For now, Anonymous and their allies are opting for tried-and-true hacktivist self-help.

This most recent conflict with the left-leaning TPM would not be so interesting if, for the past several years, TPM’s influence in the complex political economy and ecology of D.C.-based political news reporting had not grown as rapidly as it has. TPM’s popularity has perhaps ballooned as rapidly as the circulation and relevance of the traditional print news organizations have diminished.  It is evidently now part of the media establishment.

Just as importantly, this conflict raises interesting legal questions about the practice of publishing mugshots. In this case, TPM chose to publish mugshots of people who apparently have yet to be found guilty of the charges related to the attack on PayPal. Why post those pictures? Perhaps TPM sought to humanize a group whose members have hidden behind Internet communication technology and the iconic image of a masked vigilante hero.

In any event, as an ethical matter, TPM may have gone too far. Even the U.S. Marshal Service has a policy of not releasing mugshots, because, pursuant to FOIA Section 7(c)’s, releasing such photos would violate the privacy interests of criminal defendants. This would be a hard-and-fast restriction on such releases across the country but for a 1996 Sixth Circuit decision requiring the agency to honor federal FOIA requests for U.S. Marshal Service mugshots from anywhere around the country as long as the people submitting the request reside or work in the states within the Sixth Circuit. (The Sixth Circuit’s holding recently came up in the context of the creepy mugshot of Jared Loughner, the man who shot U.S. Representative Gabrielle Giffords and killed six people in Arizona earlier this year.) This is how TPM got the photos even though their offices are in New York and DC.

At a minimum, TPM’s decision, while understandable, raises serious questions about ethics in Internet journalism. These questions become all the more fascinating when, as here, the defendants’ alleged criminal conduct is so intertwined with their ambition, right or wrong, for anonymity.