Tilburg University Breaking and remaking law and technology Dizon, Michael Publication date: 2016 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Dizon, M. (2016). Breaking and remaking law and technology: A socio-techno-legal study of hacking. [s.n.]. 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DIZON B REAKING AND R EMAKING L AW AND TECHNOL OGY A Socio-Techno-Legal Study of Hacking Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rec- tor magnificus, prof.dr. E.H.L. Aarts, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op dinsdag 28 juni 2016 om 16.15 uur door MICHAEL ANTHONY CO DIZON geboren op 13 juni 1975 te Quezon City, Filipijnen Promotores: prof.dr. R.E. Leenes prof.dr. E.J. Koops Overige leden van de Promotiecommissie: prof.dr. P.J.A. de Hert prof.dr. N. Helberger prof.dr. B.P.F. Jacobs prof.dr. T. Swierstra ACKNOWLEDGMENTS Researching and writing this book would not have been possible without the help of the following persons, groups and institutions. I would like to extend my gratitude to them for their contribution and assistance in making this book: my supervisors, Professor Ronald Leenes and Pro- fessor Bert-Jaap Koops, for their guidance and feedback throughout the entire process; Tilburg University for granting me the opportunity to con- duct this research as a PhD candidate; the faculty and staff of Tilburg Law School for their help and advice on academic and administrative matters; my colleagues at the Tilburg Institute for Law, Technology, and Society (TILT) for their camaraderie and useful comments on my research, par- ticularly Dr Maurice Schellekens, Dr Bryce Newell and Dr Tjerk Timan for their detailed notes on specific chapters; the administrators and staff of the International Institute for the Sociology of Law for the grant to conduct research at their excellent library and documentation center; the organizers and students of Netherlands Graduate Research School of Science, Technology and Modern Culture (WTMC) Summer School 2014 for an informative week learning about science and technology studies; the faculty, staff and students of the Oxford Internet Institute’s Summer Doctoral Programme 2015 for sharing their research and expertise with me; Val Datu and VJ Graphic Arts for the design and layout, and my fam- ily and friends for their encouragement and support. I would especially like to express my appreciation to the members of the Dutch hacker com- munity for their openness and generosity in agreeing to interviews, chat- ting with me, listening and reacting to presentations about my research at hacker conferences, and allowing me to observe and participate at various hackerspaces and hacker events. I hope that I was able to capture the es- sence of hacker culture as much as possible and to see the world through your eyes. Most of all, I would like to thank my wife who is always with me every step of the way. S U M M A R Y In an increasingly digital and connected world, technological groups like hackers play a significant role in the workings and governance of soci- ety. This book examines the relations and interactions between hacking and the law by focusing on two types of hackers: makers, who are interested in hacking all kinds of technologies and regularly hang out at communal work- shops called hackerspaces to build, share and collaborate on projects, and hacktivists, those who engage in hacking activities for overtly socio-political purposes. In this research, hacking is defined as the creative, innovative and unexpected use of technology. The central research question of the book is: In relation to their technologies, norms and values, how do makers and hacktivists interact with and respond to technology laws and policies? Since the research lies at the intersection of law, technology and society, the book adopts an interdisciplinary socio-techno-legal approach that combines the fields of technology law, science and technology studies, and socio-legal studies. With regard to methods, it utilizes doctrinal legal research together with various types of qualitative research methods. In addition to the legal analysis of laws that are relevant to hacking, empirical data about makers and hacktivists was collected through interviews, participant observation at hackerspaces and hacker events, and content analysis of hacker manifestos, and subsequently analyzed through a qualitative, inductive and interpretivist approach. The book aims to contribute to a better understanding of the legal and normative impact of hackers and to improve approaches to the regula- tion and governance of technology. Makers and hacktivists are part of a longstanding and vibrant hacker culture that has its own distinguishing technologies, practices, norms and values. There are different types of hackers who preceded makers and hack- tivists. They include the original computer hackers, computer hobbyists, underground hackers, and FOSS developers. Hacker culture and these pre- vious hacker generations have a strong influence on makers and hacktivists. Like the other hacker types, makers and hacktivists are extremely passionate about technology and desire to use it in new and creative ways. Makers are especially enthusiastic about continuing the hacker tradition of creatively using technology to produce inventions and other technical advances. There is also a rebellious and non-conformist streak that runs through all types of hackers. But while hacktivists share the same anti-establishment attitude and countercultural goals of early computer hackers and computer hobbyists, they do not consider technology as an end in itself but as a powerful means for socio-political ends. With respect to their norms and values, makers and hacktivists share many things in common. The values of creativity and innovation, curiosity, and individual autonomy and liberty rank highest for both of them. Makers and hacktivists also place great importance on having free and open access to and use of information and technology. But there are differences between them as well. While they both highly prize community development and so- cial development, makers place greater emphasis on the former and hacktiv- ists the latter. Makers are also more concerned about the values of openness and transparency because they require full access to technologies and sys- tems so they can use them in new and interesting ways. Hacktivists, on their part, consider privacy and security to be of utmost importance. Computer crime, intellectual property, contract, and anti-circumven- tion rules and regulations are the laws that are most relevant to makers and hacktivists. What is common among these laws and what connects them to hacking is that, like hacking, they essentially deal with or concern access to and use of information and technology. Existing technology laws and policies tend to restrict rather than support makers and hacktivists. In general, com- puter crime laws are very broad and restrictive and over-criminalize hacking. Because of the vague and low legal thresholds for committing computer security crimes, many hacking activities, including those that are creative or innocuous, are subject to criminal prosecution. While intellectual property laws grant creators and inventors extensive rights over their creations, the corollary limitations and exceptions to these rights that could benefit hackers and ordinary users and preserve the intellectual property balance are few and far between. These problems are further exacerbated by the use of restrictive contracts and anti-circumvention technologies and rules that technically and legally preclude potentially creative and innovative uses of protected informa- tion and technology. Despite these conflicts, it is curious to see how hacking and the law share and seek to protect and promote essentially the same social interests and goals. Like intellectual property laws, the main goal of hacking is to produce creative works and innovative technologies and make them available to the public. Protecting the security of computer systems and data, which is the primary objective of computer crime laws, is considered an important value as well among makers and hacktivists. While they may have serious differences, hacking and the law are connected on a fundamental level and, through these areas of connection and intersection, the tensions between them may be resolved. The relations and interactions between hacking and law and public authorities can be characterized as complex and multifaceted. Makers’ and hacktivists’ general responses to law are: to ignore and avoid it; if it becomes impossible to keep the law away, to change or resist it; and, if it benefits the hacker community and society as a whole, to possibly work with, use or adapt the law. As seen in the campaign against electronic voting machines, hack- ers can strive to change technology laws and policies that they disagree with through technical means.