Once mapped as an array of 109
definitions,[i] perhaps little wonder “the search for the legal definition of terrorism … [has
been likened to] the quest for the Holy Grail”.[ii]
To mix Monty Python references, too seriously considering ‘Operation Titstorm’ as
terrorism (cyber or otherwise), or certain naïve ideologues[iii]
as terrorists, is to recall "[h]e's not the Messiah, he's a very naughty
boy!"
That is not to belittle the
contribution of Hardy’s cited article.[iv]
Australia’s broad legislative response to the threat of terrorism typifies identified
knock-on effects in recent ‘western’ developments of criminal justice policy
and practice.[v] Systems
become oriented toward pre-emptive action against risk, effecting the
distinction between crime control and security in more ordinary contexts. ‘Normalisation’
follows - extra-ordinary powers become part of normal governmental discourse,
worst-case scenarios define the law, even for lesser crimes. Intrusions upon
liberty become embedded so as to no longer merit notice.
In such a climate, concern must
arise where Hardy argues ‘hacktivists’ under the current definition in
Australian law[vi] face
criminal liability for a terrorist act. However the article possibly underplays
two factors in concentrating upon certain interpretations of the laws
(particularly those of politicians) and advocating insertion of an alternative
(though potentially useful) standard.
Firstly, law struggles to keep pace with technology. Arguably the challenge
for law makers is to formulate general definitions reflecting contemporary
understandings of concepts such as ‘data’, ‘technology’ or even ‘terrorism’
(i.e. not solely the specific (or inductive) approach of laws re hijack,
bombing, etc.) in a form consistent with rule of law principles. ‘Terrorist act’ is defined with phrases
that retain scope such as ‘intimidating the public or a section of the public’,
‘an information system’, ‘advocacy, protest, dissent or industrial action’,
among others. Such lack of definition results in legislation being a starting
point, vitally the ultimate determination of what constitutes a
(cyber)terrorist act will be judicial.[vii]
Secondly and interrelated to general
drafting, the legislation provides exceptions[viii] where an act will not be terrorism if it be ‘advocacy, protest, dissent or
industrial action’ and is not intended[ix]
to cause serious physical harm, death, endanger life or serious risks to public
health and safety. Storms of tits and dicks upon largely political websites seem
short of this standard.[x] Disruptive effects due to similarly brutish attacks upon truly critical
infrastructure systems or the spectre of more sophisticated intrusions[xi] as a prelude to terrorist acts do not.
Therein ‘hacktivism’ and arguably use
by ‘terrorists’ of cyber-attack techniques incapable of outcomes contemplated
by s 100.1(2) might better be considered through reform of the ‘Computer
offences’.[xii] The
challenge is to ensure legislatures do not embark from a normalised version of
the anti-terrorism legislation. Mitigating the criminality of hacktivism in
this context could arguably be guided on the basis of such actions being a species
of public disorder.
Protestors conspicuously and
directly participate in the political process. Thus demonstration may not
simply be lawful, it can be virtuous.[xiii]
Considering the right to demonstrate and protest, Lord Denning stressed:[xiv]
“the need for
peace and good order. Only too often violence may break out: and then it should
be firmly handled and severely punished. But so long as good order is
maintained, the right to demonstrate must be preserved.”
We may therefore say these rights
exist at common law. Recent civil disobedience in the UK demonstrates distinctions
will always be drawn between the rational and irrational, between
“issue-oriented” and “issueless” disorder.[xv]
Lawfulness creates additional
uncertainty, analogous trespassing (entry on inclosed
lands without lawful excuse or without the consent of the owner, occupier or
person apparently in charge) is unlawful.[xvi]
Protesting is not a lawful excuse in this context.[xvii]
Of interest, and returning to the potential of hacktivism being censured as
cyber-terrorism, the legislation as initially tabled in Parliament[xviii]
provided that the advocacy, protest or dissent exception must be lawful. When
enacted, reference to lawfulness was omitted.
The public order analogy strains as
the internet environment provides little in the way of readily accessible
public space to occupy[xix] in a manner considered a demonstration, let alone public disorder. The utility
of the ‘e-mail bomb’ category of denial-of-service attack arises, as does
greater legitimacy or lawfulness. Organisations of the ilk of GetUp! (just by
example) are unlikely to generate a pro
forma e-mail campaign capable of disruptive effect. Perhaps not a bad thing
for the quality of public discourse. Yet with a potential ‘base load’ of
550,000 people,[xx] if not capable of the epic lulz of taking a system down, a well synchronised campaign would be resource intensive, potentially disruptive, and - importantly if
truly for activism - of great media interest. Moreover, where a government
website provides for receiving comments, is it ripe and legitimate for disruptive
mass insertions of non-intimidatory and otherwise meaningful comments until the
point at which the server expires?
Ultimately it is the crude almost
violent nature of an attack such as Operation Titstorm that is difficult to approve - as Denning stated, the legitimacy of such acts will be determined
by how peaceably and orderly they are conducted.
[i] Alex
P Schmid and Albert J Jongman, Political
Terrorism: A New Guide to Actors, Authors, Concepts, Databases, Theories, and
Literature (1988) 5.
[ii] Geoffrey Levitt, ‘Is “Terrorism” Worth Defining?’ (1986) 13 Ohio Northern University Law Review 97, 97.
[ii] Geoffrey Levitt, ‘Is “Terrorism” Worth Defining?’ (1986) 13 Ohio Northern University Law Review 97, 97.
[iii] http://www.smh.com.au/technology/security/meet-the-hacktivist-who-tried-to-take-down-the-government-20110314-1btkt.html
[iv] Keiran Hardy, Operation Titstorm : hacktivism or cyber-terrorism?, University of New South Wales law journal
33(2) 2010: 474-502.
[v] Lucia
Zedner, Security (2009), 116-125.
[vi] Criminal Code (Cth), s 100.1(1),
100.1(2), particularly s 100.1(2)(f).
[vii] Ben
Golder and George Williams, What is ‘terrorism’? Problems of legal definition, University of New South Wales law journal
27(2) 2004, 288-292
[viii] Criminal Code (Cth), s 100.1(3).
[ix] Not enough words to explore the interesting legal importance of this.
[x] Again without the space, would be interesting to question whether Operation
Titstorm or similar attacks would not fail at s 100.1(1)(c),
100.1(2)(f)(i),(ii) or (iii)).
[xi] http://www.wired.com/dangerroom/2011/10/virus-hits-drone-fleet/
[xii] Criminal Code (Cth), Part 10.7.
[xiii] P. A. J. Waddington, Policing citizens
(1999), 66.
[xiv] Hubbard v Pitt [1976] 1 QB 142, 178-9
(Lord Denning MR). His Lordship had been reflecting in part upon the 'Peterloo
Massacre' upon St Peter's Field, Manchester in 1819, often considered when
discussing notions of public (dis)order.
[xv] P.
A. J. Waddington, Policing citizens
(1999), 71, 77-78.
[xvi] Inclosed Lands Protection Act 1901
(NSW), s 4.
[xvii] O'Donohue v Wille [1999] NSWSC 661.
[xviii] Security Legislation Amendment
(Terrorism) Bill 2002 (Cth)
[xix] http://occupywallst.org/;
http://edition.cnn.com/2011/10/11/us/occupy-wall-street/
[xx] http://www.facebook.com/GetUpAustralia
October 12, 2011.
