Unauthorized Expression: Does 'Hacktivism' Have a Viable First Amendment Defense?

Abstract

This is a working draft of some legal research on the question of whether political acts of expression done via computers or computer networks (often referred to as hacktivism) could have any viable First Amendment defenses. It analyzes (1) the open access movement and the case of Aaron Swartz; (2) the Computer Fraud and Abuse Act (CFAA) and its potential to suppress speech through the criminalization of computer access point restrictions and the chilling effects on cybersecurity research; (3) the First Amendment generally and (a) software-as-speech theory, (b) the functional aspects of software analogized to expressive conduct, (c) the right to access information, and (d) a forum analysis of computers and the Internet. The article suggests that the current application of the CFAA has chilling effects on speech that is of great public concern. Therefore, courts applying the CFAA should no longer brush aside the First Amendment because all computer activity on the Internet is inherently communicative; software is a form of speech and even the functional aspects of software (in certain cases) could be covered by the First Amendment under the principals of expressive conduct; people have fundamental rights to access certain types of information; and certain computer networks are public forums entitling certain expressive behaviors in those forums to constitutional protection.