Zhiwei (Jack) Chen’s belongings were seized at a Georgia Institute of Technology dorm on Thursday Jan 27 on the basis of an FBI search warrant also issued to dozens of other individuals who remain unnamed. The FBI stated that these warrants were issued in connection with an ongoing investigation into cyber-attacks on “major companies and organizations.” Wikileaks was not named but the elusive ‘Anonymous group’ was. The FBI writes in its press release:
A group calling itself “Anonymous” has claimed responsibility for the attacks, saying they conducted them in protest of the companies’ and organizations’ actions.
Chen is likely thought to be associated in some way with this ‘group’ of activists because he operated a chat room in which “Payback” topics were discussed. Tragically, however, the legal relevance of holding an online chat with an individual who claims to be “a member of” Anonymous has yet to be articulated. Here are some crucial considerations that must be addressed in any context in which “membership” in the “group” is alleged, for purposes of legal action.
It is immediately clear to anyone who has a passing familiarity with the group that the expression “calling itself ‘Anonymous'” in the above statement by the FBI does not denote anything linguistically meaningful. By virtue of the very nature of the ‘group’, any attempt to define it or to assign a fixed membership list is doomed to failure. Not only are ‘members’ located all over the globe, but there is no fixed set of defining principles that can be used to single-out any particular group of individuals at any given point in time. There is no official set of membership criteria, no assigned governing body and no fixed meeting place.
Any prosecution will have to be directed at individuals carrying out a particular well-defined set of actions that directly violate laws like the Computer Misuse Act of 1990. This is precisely why the UK PCeU cited this violation explicitly when 5 people were arrested in connection with pro-WikiLeaks DDoS attacks.
No such charges have been brought against Zhiwei Jack Chen, but this did not deter the FBI from adding, in its official statement on the issued search warrants, that
The FBI also is reminding the public that facilitating or conducting a DDoS attack is illegal, punishable by up to 10 years in prison, as well as exposing participants to significant civil liability.
Clearly, while carrying out DDoS attacks is a crime, administrating a chat room is not. It is also legal for an American citizen to associate with any activist group, provided that the individual does not engage in protests that are not “peaceful”. Freedom of peaceful assembly is guaranteed by The First Amendment, even when that group purports to be involved in activities associated with “Operation Payback.” It even applies, of course, to members of the KKK.
Operation Payback is a name commonly used to refer to a cause associated with pro-WikiLeaks activists who participated in DDoS attacks against various institutions. Yet it is safe to assume that not all chat participants and chat room administrators participate in the attacks; Chen is one of many individuals who assert that they have not participated in the attacks, despite their presence on Anonymous-related IRC channels. Many journalists and academic researchers who did not also engage in DDoS attacks (or other punishable activities) have also participated in chats relating to Operation Payback.
Does any and all ‘participation’ warrant search and seizure from the United States? The FBI’s statement would certainly have us draw a direct link between peaceful assembly with the Anonymous ‘group’, loosely defined, and severe punishment. Furthermore, association with Anonymous is not necessary in order to have one’s privacy violated, judging from the actions taken by the US Department of Justice when subpoenas were issued to Twitter, which ordered Twitter to provide any and all information regarding any account in any way associated with WikiLeaks and others.
In the case of Zhiwei Jack Chen, we don’t know yet what valid evidence will be brought against him, if any, in the event that he should be charged with a crime. We do know, however, that public statements made and other actions taken by government authorities clearly have the result of discouraging dissent and activism. Anonymous operations, many of them peaceful and fully legal (including the recent operation of faxing literature to Egyptian authorities) aim to support institutions and individuals that unmask government complicity in illegal activities and human rights violations.
As a result of actions taken to discourage dissent, individuals are harmed. In this case, Mr. Chen’s electronic devices have been seized, including storage devices containing “study materials and class documents” and “it could be weeks or months before he knows anything about the investigation.” Chen has not been charged with any crime and has been told by his university, The Georgia Institute of Technology, not to speak with the press.
In sum, Chen’s right to freely pursue his education has been infringed upon by the FBI seizure, which is based on an alleged association with an elusive group, and Chen’s right to free expression has been revoked by his university, whose administrators likely frown upon the prospect of ‘negative press’. Judging from the lack of public outrage, they may be getting exactly what they want.