Confrontational activism is a conversation with power. Activists take a stand, and the response of the state or corporate target impacts the perceived success—and legitimacy—of the activist action. In at least one case, the case of Andreas Vogel, a court of law has declared DDoS actions to be valid forms of activism and condoned their use as a tool of collective action. In others, though, the judicial response has not been nearly so sympathetic, with participants hit with high fines and significant jail time.
Recently, regulatory efforts in support of the business community (both in the United States and abroad) have been augmented by attempts to make the internet "surveillance-friendly" on a technological level, turning the online space into a zone open to monitoring by state organizations looking to root out terrorism, as well as those with in an interest in turning the online space into a legitimate field of warfare. These interests have melded with those of the pro-business sector, and the result has been a collision of corporate and state efforts to lockdown nontraditional uses of technology and to heavily discourage vocal and visible displays of disruption and dissent.
This, combined with the issues of politically legitimating media coverage covered earlier, result in a legal, cultural, and technical environment that chills the development of innovative technological outlets for political action and speech.
DDoS Actions and the CFAA
This article is excerpted from The Coming Swarm: DDoS Actions, Hacktivism, and Civil Disobedience on the Internet by Molly Sauter, published by Bloomsbury.
There have been several cases of activist DDoS actions that have gone to trial or been pleaded out, in the United States and internationally. A significant case is that of Andreas-Thomas Vogel, a German national who ran the libertad.de website during the 2001 Deportation Class action against Lufthansa Airlines. Vogel had posted a call to action on libertad.de and was arrested on charges on coercion. Initially in 2005, a lower court in Frankfurt found Vogel guilty of using force against Lufthansa, based predominantly on the economic losses the airline had suffered during the campaign, both in terms of lost sales and the costs of acquiring additional bandwidth to soak the protesters' traffic. Vogel was sentenced to either pay a fine or serve 90 days in jail. However, the next year, a higher court overturned the verdict, finding, ". . . the online demonstration did not constitute a show of force but was intended to influence public opinion." Libertad responded to the ruling with a statement: "Although it is virtual in nature, the Internet is still a real public space. Wherever dirty deals go down, protests also have to be possible."
The Vogel case was the first international precedent to recognize the legal and philosophical arguments put forth by supporters of DDoS activist actions. The court decision pivots on the point that these actions were oriented to influence the public, and through that avenue, influence the actions of the Lufthansa corporation, rather than badgering the airline into conceding to a set of demands. Specifically, the judge ruled that the protest was not an action of force intended to compel an action from Lufthansa; the action's intention was to impact public opinion first.