Hacktivism, Anonymity, and Privacy
posted by Olivier Sylvain
On Friday evening, within hours of posting U.S. Marshal Service mugshots of alleged members of Internet “hacktivist” group Anonymous, TalkingPointsMemo.com became the target of a relentless “distributed denial of service” or DDoS attack. According to a statement released by TPM founder and publisher Josh Marshall on TPM’s Facebook page, visitors could not access the site a little after 5 p.m. eastern time. While no one knows for sure, TPM has inferred that Anonymous or people affiliated with the group are probably responsible for the attack. (That TPM turned to Facebook to publish a statement is ironic because Anonymous has vowed to shutdown the social networking site later this fall.) The TPM site remains down as of this posting.
According to Marshall, TPM filed a Freedom of Information Act request for the mugshots earlier this summer, and posted them as soon as they obtained them. For the past six years, according to Marshall, the news site has routinely “published mugshots of numerous people accused or convicted of various crimes” that are the subject of its reporting. I’ve clicked through the photos of hypocrites and hucksters in elective office as well as random mugshots of mobsters and celebrities to satiate an admittedly morbid curiosity. TPM, as with many other major news organizations, knows this. The questions for TPM are ethical and legal: what is it about these admittedly alluring photos of the smirks, glares, and shock typical of mugshots that adds to the story, and justifies the ostensible invasion of privacy?
This episode in vigilante bullyism comes only months after members of Anonymous were arrested for the DDoS attack on PayPal last December. The group launched this earlier attack to punish PayPal for rashly severing its commercial ties with Wikileaks, the whistle-blowing entity led by media darling Julian Assange, soon after Wikileaks released sensitive U.S. State Department cables.
The more you pay attention, the more this most recent affair sounds like a convoluted high-tech inside-baseball soap-opera. But, at bottom, this case stands as another ambiguous artifact in the persistent question about the efficacy of government-promulgated laws in relation to the Internet. In this case, sophisticated vengeful hackers were the victims of overzealous investigative journalism and, get this, entitled to government-promulgated privacy protections. Whether they want those protections invoked, however, is another question. For now, Anonymous and their allies are opting for tried-and-true hacktivist self-help.
This most recent conflict with the left-leaning TPM would not be so interesting if, for the past several years, TPM’s influence in the complex political economy and ecology of D.C.-based political news reporting had not grown as rapidly as it has. TPM’s popularity has perhaps ballooned as rapidly as the circulation and relevance of the traditional print news organizations have diminished. It is evidently now part of the media establishment.
Just as importantly, this conflict raises interesting legal questions about the practice of publishing mugshots. In this case, TPM chose to publish mugshots of people who apparently have yet to be found guilty of the charges related to the attack on PayPal. Why post those pictures? Perhaps TPM sought to humanize a group whose members have hidden behind Internet communication technology and the iconic image of a masked vigilante hero.
In any event, as an ethical matter, TPM may have gone too far. Even the U.S. Marshal Service has a policy of not releasing mugshots, because, pursuant to FOIA Section 7(c)’s, releasing such photos would violate the privacy interests of criminal defendants. This would be a hard-and-fast restriction on such releases across the country but for a 1996 Sixth Circuit decision requiring the agency to honor federal FOIA requests for U.S. Marshal Service mugshots from anywhere around the country as long as the people submitting the request reside or work in the states within the Sixth Circuit. (The Sixth Circuit’s holding recently came up in the context of the creepy mugshot of Jared Loughner, the man who shot U.S. Representative Gabrielle Giffords and killed six people in Arizona earlier this year.) This is how TPM got the photos even though their offices are in New York and DC.
At a minimum, TPM’s decision, while understandable, raises serious questions about ethics in Internet journalism. These questions become all the more fascinating when, as here, the defendants’ alleged criminal conduct is so intertwined with their ambition, right or wrong, for anonymity.
September 10, 2011 at 1:26 am
Posted in: Anonymity, Current Events, Cyberlaw, Privacy, Privacy (Law Enforcement), Technology, Uncategorized
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Responses (8)
Joe - September 11, 2011 at 8:32 am
If posting of the pictures are possibly a violation of privacy, why continue it by linking to them? The tenor of this post implies it is something of a close call. Does a blog like this follow different rules than a ‘media’ source like TPM? If another blog posted the pictures, would TPM be ethically allowed to link them?
Paul Horwitz - September 11, 2011 at 12:19 pm
I agree that there is a strong strain of ambiguity in this post. That’s fine, life is ambiguous. But I think you’ll have to say more to convince me that this case really raises strong ethical questions about TPM’s conduct. You seem to bootstrap some ethical concerns out of the fact that such pictures would not be disclosed under all prevailing interpretations of FOIA. But did the publication of the Pentagon Papers raise strong questions, in your view, about newspaper ethics, simply because the government had made clear that those were confidential documents? Isn’t the identities of the anonymous members of Anonymous closely related to the story and thus journalistically relevant, thus eliminating some of your broader concerns about publication of such details for their own sake? What do you mean by “ostensible invasion of privacy?” Assuming that privacy interests can be outweighed by other interests, how strong is an arrestee’s privacy interest in concealing his or her name and/or face? Don’t get me wrong; it’s an interesting story and I’m glad you informed me about it. But I don’t think you have shown that it’s terribly ambiguous; from a journalism ethics point of view it does not strike me as a terribly difficult case.
Olivier Sylvain - September 11, 2011 at 4:12 pm
Joe and Paul: Thanks for the comments. You are right to pick up on the ambiguity in the post. I am unresolved on the question. If anything, as Joe suggests, I betrayed a visceral inclination to side with TPM and news organizations generally. But, believe it or not, I really am still not sure.
Paul: Irrespective of my opinion, I’m not so sure the Pentagon Papers example is helpful or analogous to this situation. Here, all federal appellate courts except the 6th Circuit have ruled that FOIA does not allow the release of Marshal Service mugshots. At a minimum, this lopsided split makes the Anonymous case a complicated legal question. In any event, my sense is that the President’s or executive agency’s decision to designate certain documents as ‘classified’ in the PP case did not address or outweigh the First Amendment interest in that case. But, then again, I’m not a national security expert. As it relates to mugshots, the Courts have spoken with near unanimity. It is an inelegant asymmetry in the interpretation and administration of federal law that exposes defendants everywhere. Don’t you find it at least bizarre that the 6th Circuit could weild so much power?
As for journalistic ethics, which is orthogonal to law or law enforcement, I don’t think it’s an answer to say that TPM publishes mugshots all the time. If they take ethics seriously, they should do more to explain how publishing these photos advances the story. Daniel Ellsberg had a good one. For what it’s worth, I advanced one theory in the piece – to humanize the defendants – that still does not seem up to snuff. TPM may have another reason. If they do, I admittedly missed it.
Joe - September 12, 2011 at 8:00 am
It seems to me that one message sent by the posting of these mugshots in particular is what happens when you have the power to break the rules (ethical rules here; as to the 6th Cir. — I’m not sure why that is “bizarre” when more protections, down to same sex marriage, via court rulings in certain jurisdictions has major consequences in various areas … if this is wrong here, the Supreme Court should step in) and publish things that you deem newsworthy. It is as you say a tad ironic if the group wants the privacy protections, which they seem to have fought for in a back-handed self-enforcement type of way.
The posting of photos of people in news stories, including those arrested (or even alleged to have done something), is pretty common. See, e.g., “perp walks.” So, I’m not sure why they have to explain their specific use of the tactic. It humanizes a story and as the ruling notes, the mugshots are not of anonymous people but those who were publicly processed in court.
I can see a problem with this sort of thing, but it is a problem of a major press device, and I’m not sure why TPM has to defend themselves in particular here unless they are doing something special. It doesn’t appear that they are.
Paul Horwitz - September 12, 2011 at 8:27 am
Olivier, I appreciate your response, and I think it’s great to write about something on which you are still unsure where you finally stand. Two brief replies: 1) My analogy to the Pentagon Papers is limited. I’m just trying to say that, as a matter of *journalistic* ethics, the standard is not necessarily whether particular information may or may not be disclosed as a matter of law. Journalists do indeed face ethical questions about whether to publish confidential information, even where that confidentiality is guaranteed by law, but those ethical questions usually have to do with the news/informational value of the disclosure, not whether the disclosure is legal and/or how many courts agree or disagree on that issue. 2) I agree that it’s not a complete answer to say that journalists publish mug shots all the time, although I don’t have too much trouble as an ethical matter with that fact. (Not to say I think this is the highest or best use of journalists’ time and resources. It depends on the case, I should think.) But from the point of view of a former journalist, this would seem to me an easier than usual case. As you note, Anonymous, as the name suggests, is a group devoted to “hacktivist self-help,” which may involve breaking the law, and it uses anonymity both to achieve that end without legal consequence and to add an aura of mystery and threat. Surely a story about who its members actually are is a valid journalistic topic, and surely photographs of those alleged members who have been arrested is natural “art” for such a story.
Olivier Sylvain - September 12, 2011 at 9:42 am
Joe and Paul: Thanks for following through. I’m grateful for the exchange and, to repeat, warm to the idea that TPM has a right/privilege/entitlement to publish the photos. But I don’t think it’s as unambiguous as you both assert.
First, Joe, I don’t think the same sex marriage cases are analogous to the FOIA problem. Here, the Sixth Circuit’s decision effectively overrules other appellate court decisions across the country and eviscerates the application of the FOIA exemption at issue. In other words, if and until the Supreme Court weighs in, mugshots taken in Arizona or NY or Florida (indeed, anywhere in the US) are available to residents and workers in the states within the 6th Circuit. This is happening now. TPM and other news organizations can turn to a friend or correspondent or affiliate even though TPM’s principle places of business are outside of the 6th Circuit. (There’s got to be a doctrine or principle in Federal Courts or Federal Jurisdiction that addresses the point.)
Second, I agree with Paul’s lucid analysis in (1). This is why I asserted in my first reply that journalism and law are orthogonal to each other generally. Not unlike his choice to reference the PP case, I reference the legal problem to highlight the competing *ethical* norms at issue.
But, more than this, if we take journalism ethics seriously (and I believe you both do), I think we have to expect more in the way of explanation from TPM and other news organizations. The reason that Paul gives – the photos address the “aura of mystery and threat” of Anonymous – is a far better one than TPM has offered explicitly so far. But, then again, maybe the reasons to publish these photos are self-evident and obvious to everyone but me.
I think we can agree that this recent case showcases the slippery ideological footing on which Anonymous stands. Allied as the group is with Wikileaks, I presume that it doesn’t care about law or ethics as much as transparency. But, as Joe explains, the group is showing itself to be indifferent to that important norm as well. The group and its affiliates appear only interested in being winners at all costs. That’s not such firm ground on which to make a lasting and positive movement.
Joe - September 12, 2011 at 10:40 am
The SSM marriage ruling might not be a perfect fit, but given certain states do recognize out of state marriages even when their own law doesn’t allow such marriages (this was true in NY before SSM was protected statutorily), the decision in effect allowed the judges in one jurisdiction to have major effect outside of it.
And, if I’m wrong with this example, it doesn’t mean much. On various issues, including respecting what the press can use, there are outlier court rulings that apply only to that jurisdiction but has broad effects outside of it. Again, if the Supreme Court should step in here for this specific matter is debatable. It still would arise in various other contexts.
I emailed TPM to ask for clarification, but again, I am wary of singling them out when they do something that is common press policy. The lawsuit opened up a practice for the press to use and unless TPM alone is doing it, I’m unsure why they have to defend themselves. As I and Paul Horwitz noted, it isn’t really hard to think up various reasons to use something the court held was proper to use.
I think having the press be required to defend itself when it does something that was deemed appropriate by the courts can have certain negative consequences, in fact. Anyway, I appreciate the replies & will leave it there since I think the key issues have been addressed.
AF - September 12, 2011 at 12:04 pm
I agree with Professor Horwitz: It’s hard to see the ethical difficulty here.
Assuming that publishing mug shots can in some circumstances raise ethical issues, it seems pretty clear that publishing the mug shots of people accused of belonging to a group known for its anonymous hacking, which often involves publishing the confidential information of others, is fair and reasonable. It may or may not be the case that “the reasons to publish these photos are self-evident and obvious to everyone.” But I think they are sufficiently apparent that we can safely assume this was part of TPM’s rationale.
As to the Sixth Circuit loophole, I don’t think that affects the ethical issues much. If mug shots should generally be protected, then the Sixth Circuit loophole is unfortunate as a general matter. But since publishing these particular mug shots is unproblematic, there doesn’t seem to be anything wrong with using the Sixth Circuit loophole to do so. Indeed, for the reasons above a good argument could be made that even in circuits where mug shots are generally protected, these ones should not be.
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