Cultural Practice, Legal Norms, and Intellectual Banditry
			in the Contemporary United States


	A Dissertation Research Proposal successfully defended June, 1996.

Michael B. Scher
University of Chicago, Dept. of Anthropology

Abstract

	"Intellectual banditry" is on the rise in the United States: 
incidents of unauthorized access to computer and communications systems
have occurred with rapidly increasing regularity over the last twenty
years.  As professional criminals begin to adopt spin-off technology
from the computer underground, it becomes imperative to understand this
subculture that discovers and manipulates holes in our technology, and
the cultural framework that underlies their continued activity in the
face of ever-harsher penalties.  The proposed fourteen-month project
will undertake an historical, legal, and ethnographic study of hackers
in the U.S., to describe the practices and circumstances that engender
and support hacking as a social phenomenon.  The project will also
examine reporting, underground writing, and a number of contemporary
unauthorized access laws and trial cases to expose and examine conflicts
among social, legal and underground understandings of property,
identity, and criminality.  Through an examination of representations
and practices, I hope to illuminate where and how these conflicts arise
and what they may signify.  In what many term an "information society,"
we can neither afford to ignore the steady increase in hacking nor
assign it to delinquency without examining the larger questions it
raises about the hegemonic values and practices of the society in which
it occurs.

I.  Introduction, Statement of the Problem	
	Despite new and ever-harsher criminal statutes, calls for
enforcement, training of law enforcement personnel, and a new wave of
high-profile convictions,1 unauthorized access of computing and
communications systems continues throughout the world, and in fact
appears to be on the rise.  I propose to explore this discordance,
seeking to elucidate the conditions and cultural bases that occasion a
rise in the criminalized activities, even as those activities become
increasingly penalized.  Paralleling continuous growth in the use of
computers and the networking of computers to publicly accessible systems
(such as phones, store-and-forward networks, and the Internet), the
number of reported intrusions and cases of unauthorized access to
private systems, or non-public areas of otherwise open systems has risen
dramatically over the last several years,2 and the incidents reported
continue to increase.  Among the trends are the widespread use of new,
increasingly sophisticated attacks3; intrusions into the administrative
systems of large service providers such as America On Line (AOL)4; and
the development of software designed explicitly to circumvent
limitations imposed on such services' subscribers, written with a skill
and sophistication far beyond the level of AOL's target audience.5 
Perhaps most interesting is that among the incidents most
sensationalized by mass media are those in which no financial motive is
involved.  The proposed research project focuses on that "underground"
of actors who perpetrate complex and sophisticated intrusions into
communications and computing systems with apparently no financial
motivation.
	Though the computer underground is characterized even by its
opponents as being composed of "explorers,"6 the increase in the number
of computer systems open to public access seems to have provided only an
increase in targets for deeper intrusion, rather than a legal outlet for
exploratory tendencies.  The "hacker community,"7 however, is quite
aware of the illegal nature of its practices8 and in many respects is
defined, both internally and externally, specifically as people who
undertake to commit a certain set of illegal actions.9  Interestingly,
reporters agree that, except for avoidance of phone charges, most
hackers do not illicitly access systems for financial purposes.  Those
hackers who have engaged in some kind of activity for fiscal gain appear
to use simple credit card fraud, an entirely untechnical enterprise. 
Indeed, one account notes a hacker proving that he had control over a
bank teller machine, and proved it by having it print a balance, rather
than dispense cash.10  
	As still more new laws are proposed to regulate activities
associated with information systems and privacy, both in state
legislatures and before Congress, one must ask why it is that, despite
extant, felony-level penalties,11 hackers continue to practice system
intrusion and theft of intangible property (data and services).  One
might suppose there is profit in hacking, and though there might well
be, the majority of hackers are not hacking for financial profit, and
neither sell what they find, nor accept payment.12 Yet, despite the
youth of many hackers, it is naive to characterize their intrusive
activity as "delinquent" or "unethical" rather than (perhaps) a failure
of legal limits to make sense when viewed through everyday experience.13
 The removal of certain activities and discourses from the sphere of
permissible social action can generate an interest in those very
activities symbolic of, and as a practice of resistance to the political
and economic institutions that have generated the new boundaries.14  In
addition, practices that were aimed at those institutions' intellectual
and intangible property interests, and which have been subsequently
declared illegal, may well continue despite the illegality, where they
existed in the first place as a form of resistance to or where symbolic
of a resentment of the socio-economic and political relations that
supported the property interests - i.e., in the case of hacking, where
the practices may have taken place as an exclusively intellectual sort
of banditry.  
	Statutes and case law regarding rights and property interests in
intangibles (copyright, trademark, privacy, trade secrets, computer
time, and electronic services, inter alia) have undergone rapid
development and change in the last fifteen years, with both the civil
and corresponding criminal laws in flux.15  As annual expenditure on
computer and communications related security and law enforcement
mounts,16 in response to, and in anticipation of increasing illegal
activity of various kinds - some of it a highly commercialized spin-off
of the "explorer" hacker activities17 - it becomes imperative to study
the impetus behind the illegal activities.  Because the hackers
represent the players who effectively drive the cutting edge of the
technology behind the illegal enterprises, from hobbyist to
professional, understanding their points of view, motivations, and goals
is essential .
	The law is unlikely to catch up with or control unauthorized access
activities until the people making the laws have an understanding not
only of what hackers do, but also of why they do it.  The mere
assumption that most deviation from legally dictated limits is done for
gain rather than in reaction to the laws, or because the limits fail to
make sense as applied to everyday or "commonsense" experience, will only
lead to a continued revamping of the laws without them ever "making
sense" to the general public (or at least to those whose activities the
laws target).  An anthropological study that seeks to elucidate the
unstated assumptions and views of the law and of people engaged with
access to computers and communications systems may produce a clearer
picture not only of the variegated cultural conceptions of "unauthorized
access," but of which aspects of the legal framework the underground
disregards, and why.

II.  General Project Description
	The research project will take place in two phases.  In the first,
historical, legal, and social research will be conducted along with
ethnographic fieldwork in the Chicago area.  This phase will involve a
review of legal opinions, court transcripts, and scholarly articles
throughout the development of computer crime laws in the U.S., articles
and books from the press on the subjects of unauthorized access and
hackers, and materials generated by hackers themselves.  This phase of
the project will be informed by a sensitivity to the history of property
law, and particularly intellectual property law in the West, and will
explore the interaction of the underground, the public media, and the
legal system as they have progressed since the early 1970s.  The
ethnographic component will be conducted primarily in Chicago, and
secondarily in New York and San Francisco.  The study will focus on
people who call themselves "hackers" and who are known in the loosely
affiliated computer underground community as such.  This phase will
involve the construction of a descriptive ethnography of current
practices relating to the gaining and exploiting of unauthorized access,
discussions of such activities, and social activities among hackers.
	Significant contacts have already been made with a number of
hackers; the positive response from almost all parties contacted thus
far leads me to believe the study will not want for willing
participants.  Most of them have already expressed some interest in
knowing the actual computer-related law, and yet add that they have no
interest in conforming to it, demonstrating an intellectual if not
practical concern with the law.  No actual participation in illegal
activities will be undertaken as part of this research, though no doubt
observation of such activities may occur.  I will also consult with the
University counsel and the Provost's office before undertaking active
fieldwork.
	In the second phase, the study will re-examine several contemporary
"unauthorized access" related prosecutions and litigations to draw out
the relations between the legal and subcultural understandings of
hackers' activities as they meet and are interpreted in the courts.  The
study should help refine the present understanding of the interface
between legal sanction and illicit activity.  Further, it may well
illuminate the processes by which laws that are meant to sanction or
"send a message" can invite or aggravate the practices they were meant
to remedy. 

III.  Review of the Literature
	Researched studies of the computer underground have been limited to
criminological,18 Constitutional,19 and journalistic20 views of hacker
activity, and one study of computer underground literature from the
sociological perspective of hackers as a revolutionary social
movement.21  Dorothy Denning notes that hackers consider "information
hoarding and disinformation" to be the real crimes, and information a
social resource, not an exclusive property right of company owners and
institutions (landlords) watched over by system administrators (wardens)
with no concern for the hackers' motives or goals and enforced by courts
(justices of the peace).22  Dorothy Denning's paper represents a first
stab at an ethnographic look at hackers, and opens the way to ask the
question:  "What are the clashing discourses that the hackers stand at
the battle lines of?" - it opens a large set of questions about the
"values and practices" of different population groups in "an information
society."23  Tanja Rosteck, in a paper posited like Denning's as a
preliminary to others' later study, observes that there seems to be a
consistent core of revolutionary content to hackers' writings,
particularly concerning information ownership and rights in privacy.24  
	Journalistic accounts of hackers tend to cater to two extremes,
those that demonize hackers25 and those that characterize them as
misunderstood victims of organized witch hunts.26  Those that seek to
engage hackers as people with a somehow fundamentally differing
experience of their illegal activities are few, and, even then, often
try to distinguish one group of people - those with a keen interest in
how computer and communications systems work, and how to get the most
out of them - from those who illicitly access those systems, whether
they share the same keen interest or not.27  I intend to use the term
that the people I will be studying use for themselves - hackers -
following Denning, who says:

    I shall use the term "hacker" since the people I am writing about
    call themselves hackers and are interested in learning about
    computer and communication systems.  However, there are many people
    . . . who call themselves hackers and do not engage in illegal or
    deceptive practices; this paper is also not about those hackers.28

I will take the hackers' meaning for the verb "hack" to mean more or
less, to gain unauthorized access to a [computer or communications]
system or more access than was authorized.  It is my intention to
examine the cultural phenomenon of hacking (which is widespread through
the West in general),29 testing whether it is rooted in an ideological
rift, a breakdown in hegemonic "commonsense" as experienced by those not
in power over the objects of intellectual property law and other
intangible property interests.  Is the social framework surrounding
intellectual banditry such that a watchful observer could conclude the
activities to take place without criminal intent to profit or harm, but
with intent only to access the protected objects, despite the law?  If
so, what are the implications for public policy, law making, and
enforcement?
	There have been several good studies on the development of
Anglo-American property law and its relationship with concepts of
personhood and social (public) versus private spheres of activity and
control.30  Douglas Hay (1975a:18) discusses the "flood of legislation"
concerning property crimes in eighteenth century England, highlighting
the interplay of law and social relationships.  As the appropriation of
formerly public spaces or objects not previously conceived of as private
property accelerated, the realm became one of riots, "bloodier laws, and
increased convictions"31 the death sentences for which were regularly
commuted.  The law as promulgated appeared to weaken its enforcement,32
but the effect, Hay asserts, was ultimately to reinforce the patron
status of the aristocracy while they extended their control into
formerly Crown (effectively public) spaces.  Similarly, in his "Poaching
and the Game Laws on Cannock Chase," Hay  recounts the struggle between
commoners and landholders over hunting rights, from 1670, when rights in
hunting became restricted to those of high income, through the late
1700s, when acts of violent protest, arson, and vengeful sabotage were
commonplace against the landed who strongly enforced their exclusive
hunting rights.33  The parallels to be drawn between Hay's description
of social conflict over rights to access land in eighteenth century
England and conflict over rights to access information in the twentieth
century are numerous.  Though rights to hunt were limited to the
privileged few, and penalties were tremendously harsh, including death
for some acts, poaching was rampant throughout the period; the severity
of the laws and the likelihood of enforcement were little deterrent in
the face of strongly conflicting ideologies about "theft" between the
classes.34  Penalties were regularly reduced to balance between
signaling that the laws were not to be taken lightly, and to prevent
public outcry (and riot) over public perception that severe punishments
outweigh the import of the crime.  Like hackers, poachers drew status
among other poachers - and often in the lay community - from
particularly complex, daring, or inventive exploits, and were known to
keep trophies to mark their achievements, despite harsh penalties if
discovered.35  While the "eighteenth century poor have not left a
literature about the joys of poaching . . . [t]he excitement of snaring
hares, eluding keepers and shooting deer were very real pleasures . . .
[and they] took pride in their exploits," even keeping trophies, the
discovery of which would land them in gaol for a year.36  Similarly,
hackers take pride in their exploits, and indeed, as Rosteck points out,
they have left us a vast literature, a font of material, written
discourse to be blended with ethnographic study.37
	There has been a reasonable amount of anthropological inquiry into
cultural practices that continue despite criminalization or are
otherwise exercised in the face of criminal laws.38  Acts of
"resistance," Jean and John Comaroff note, range from the "organized
protest, explicit moments and movements of dissent" to "gestures of
tacit refusal and iconoclasm, gestures that sullenly and silently
contest the forms of an existing hegemony."39  These often occur with
"murky" evidence of intentionality on the part of the actor to "resist"
per se, but nevertheless produce historical consciousness in the actor,
and feed into a struggle for "conceptual mastery over [ ] a changing
world."40  In studying the case of colonizer and colonized, the
Comaroffs highlight a case in which the alteration of cultural signs and
practices exercises power in an effectively transparent manner.  These
same kinds of power relations may well exist between classes and
variously interested groups within our own culture as new conceptual
territory becomes effectively colonized by one group to the exclusion of
others.  Such relations could emerge where contradictions between
prevailing norms and lived experience contribute to a breakdown of
hegemony:

    Hegemony, we suggest, exists in reciprocal interdependence with
    ideology; it is that part of a dominant worldview which has been
    naturalized and, having hidden itself in orthodoxy, no more
    appears as ideology at all.  Inversely, the ideologies of the
    subordinate may give expression to discordant but hitherto
    voiceless experience of contradictions that a prevailing hegemony 
    can no longer conceal.41

Rather than being "rituals of rebellion,"42 expressions of ideological
dissonance and acts based on realization of that dissonance (or, for
that matter, acts based on an ideology at odds with the political norm)
represent historical moments where the reproduction of everyday life
realizes the potential for the production of alternatives to everyday
life.  These moments become the building blocks of alternate cultural
consciousnesses, and potentially of political and social movements. 
	Rosemary Coombe has examined the intersection of social discourse
and intellectual property restrictions, discussing the political and
cultural implications of the ownership of non-material cultural
artifacts.43  She examines conflicts between social discourse and
intellectual property ownership as they have emerged in legal action,
noting that we "need to consider the legal constitutions of symbols and
the extent to which 'we' can be said to 'share' them."44  An unexamined
assumption in her study seems to be that, though the constituents of a
culture that gives rise to a system of intellectual property may feel
harmed by the ever-growing field of ownership and control of what was
previously public, they nevertheless will not find their beliefs skew to
the system's basic legal principles.  That is, they may protest when
they find their discourses cut short by the limits imposed by
intellectual property laws, but otherwise, they will not chafe at the
concept of intellectual property itself.  This view is understandable,
given some of the background of Anthropology with its tendency to
examine dissonance over such basic issues as property in situations of
cultural conflict, or in intra-cultural power relations between classes.
 Even those studies in Anthropology that permit for intra-cultural
ideological conflicts emerging in situations other than socio-economic
class conflict have taken place in relations of colonial and
post-colonial power and cultural clash (e.g., Comaroff and Comaroff,
supra ).  A study of hackers, who seem to find property rights in
intangible and intellectual property irrelevant or offensive,45 will
help elucidate the ways in which parts of a society can fall into
ideological conflict.
		In Primitive Classification, Emile Durkheim and Marcel Mauss
concluded that "[n]ot only the external form of classes, but also the
relationship of them to each other, are of social origin. . . .
Furthermore, the ties which unite things of the same group or different
groups to each other are themselves conceived of as social ties."46 
Their meaning was that social structuring and the conceptual structuring
of the perceived world were interrelated such that the world was
constituted as an extension of social structure, and social relations
were projected upon it.  The structural-functionalist perspective
perceived a holism to the world view that derived from the activity of
humans in society, activity that was in turn the projection of social
structures into the world.  The social laws, religion, and ultimately
the whole of the world view reflected the actual practice and experience
of social life.  There was little room for radically differing
conceptual frameworks in one social system.
	Pierre Bourdieu took the action away from the act of projection and
situated it in the structure itself, in Outline of a Theory of Practice
(1977), in which he asserts habitus, learned expectations of repetition
of activity and experience, "is the universalizing mediation which
causes an individual agent's practices, without either explicit reason
or signifying intent, to be none the less 'sensible' and 'reasonable.'"
47 The structuring of repeated practice both creates and limits habitus,
and thus promotes and constrains new activity; but, except that these
structures occur as repeated forms of action, they are not "real." 
Instead, Bourdieu suggests that the actors' experiences limit the
potential range of their invention, and the sense (which exists in
relation to past experiences) that can be made of others' inventions.
	A "realistic" (materialist without being positivist), perspective on
human society presents us with the problem of the material world as
apparently subject to human conceptual frameworks while at the same time
inspiring and limiting them in the final instance.  This relationship of
phenomenological reality to perception and ideology may be termed
"reflexivity."  I take reflexivity to be the apparently continuous
relational process in which performer/perceiver, context (including
other performers), and meaning inter-evolve, each affecting the other;
it contains the idea that meaning arises simultaneously with a sense of
self and other, a sense of the ways in which perceived phenomena may be
associated while situated in continuous, historical, interactive
contexts - meanings as between perceiver and context, not within one or
the other.48
	Alfred Schutz describes the move from raw experience to the typical,
and thus to expectations of experiences that resemble certain "types"
through the concept of "typification," in effect a parallel description
of Merleau-Ponty's sedimentation.49  It also adds a level in to
Merleau-Ponty's description of reflexivity and conceptualization of the
self, for the assemblage of past experiences into "ideal types" of
varying degrees of generality ("anonymity" in Schutz's terms) involves a
continual testing of types through practical activity to organize the
perceived world in terms of these typifications.  In time, these applied
expectations of types - "background assumptions" - may become implicit
and so expected that they are taken for certainties, a process Michael
Silverstein terms "objectification," which people do "on the basis of
analogies to certain pervasive surface-segmentable linguistic patterns
[in their transparent, native language], and act accordingly".50
	Silverstein's active, praxical structuralism involves reflexivity in
a way that purely ideal or structural (e.g., Levi-Strauss's) systems
cannot:  He notes that people not only refer with language to the world
'out there,' "they also presuppose (or reflect) and create (or fashion)
a good deal of social reality by the very activity of using language."51
 Silverstein's reflexivity does not depend on human perception actually
being "the world" (as it is for Merleau-Ponty); rather, whether people
accurately perceive the world is irrelevant, as their very "[a]wareness
of so-called reality is at least partially precipitated out of [the
process of using propositional structures and categories to describe and
react to practical situations], so that for speakers of a given
language, contextualized social action is intimately bound up with this
projection."52  That is, whether human perception is ultimate truth or
not, humans will always live in a world reflexively viewed through
conceptual and linguistic structures that are reformulated over time
through the tension between their deep or crypto-structure and the
explicit, ideological, understandings of their structure:  a view of
reality subject ultimately to human social interaction.
	The benefits of a materialist phenomenology as formulated by
Merleau-Ponty include that Merleau-Ponty's own work sets the stage to
extending his work on bodily hexis to a way of describing bodily praxis;
of the body not merely as prime referent mediating the individual's
experience, but as the perception- and interaction-mediated framework on
which the "successive and simultaneous community of existences" occurs,
and thus where "the community" experiences its simultaneity (since the
practices in, and experience of, the simultaneity are the making and
remaking of community).  Social being thus becomes susceptible to
description both from an internal and external point of view, internally
in ideological terms (in Silverstein's meaning as explanatory of
structure, in terms related to conscious and purposive function) and
externally (in terms related to unconscious complexity and patterning,
of the assumed, or "presupposed."53).  By combining internal explication
with external explanation, a sense of actual "lived experience" might be
gleaned and a fuller meaning given to internal terms; this goes beyond
ethnoscience, in that the structures explicated from the internal point
of view are examined with the structures found through external
observation.54
	Practice itself becomes susceptible to study for patterns or
coordinate subsets of organization that (along with a "linguistic
ideology" expressed by members of the society) can lead us to understand
the whole contextualization of particular praxes in the society, from
their conceptual underpinnings to their relation to material
reproduction.   We become able to view practices as actions within a
social consciousness, organized not only as meaningful, but, because
bearing a meaningful relation to other forms of practice, as practical,
and are able to approach action as part of a broad world view.  Thus
patterns of verbal, gesticular, and practical activity may act as
indicators of community or subculture boundaries and membership.  By
seeking out patternings to behavior, verbal and otherwise, one may begin
to describe some of the indexical ground of membership in the community
being studied.
	Approaches to the generation of meaning and to explicating the
meaningfulness of practical activity that have successfully incorporated
a phenomenological perspective have pursued methods related to the
theoretical outline above.  Harold Garfinkel and Harvey Sacks approached
practical, daily activities with an eye to the contrast between
ideological rationales and preconscious presuppositions.  Garfinkel's
ethnomethodology explored, for example, the "essential reflexivity" of
accounts as practices relative to ordinary daily life.  The construction
of a practical account of a given experience was shown to depend
strikingly on one's relative position contextually.  More importantly,
persons giving accounts presupposed the translocatability of their point
of view, and were generally found to be mistaken unless they
participants shared similar social positions in the context.
	Ethnomethodology was founded on the assumptions of Husserl's
phenomenology as a replacement for Kantian assumptions about the
approachability of reality, and on Schutz's practical explanations of
social being, and so, it was particularly concerned with the examination
of tensions between ideological representations of activity and the
practical activities themselves.55  In particular, Garfinkel's concept
of the "background understanding" as the "seen but unnoticed," analogous
to Silverstein's use of "presupposed" in linguistic referencing of
context,56 is a practical description of the indexical ground for the
perception of typified "objects" in the experiential world; that is, the
background understanding, itself a kind of typification of context, the
"taken for granted" of Schutz, makes the selection of meaningful parts
out of generalized experience possible.57  What then are the background
understandings of hackers, and what background understandings of the
larger communities in which they operate do they manipulate to their
advantage?  To what standards do hackers hold the actions of other
hackers, and how do these standards, perhaps unarticulated, vary by
individual, and if at all, by stylistic subset of the subculture?  Or as
a far outsider might wonder, "is there honor among thieves?"  As the
eighteenth-century poachers held standards not only for technical
practice, but for the whole of range of activities related to poaching
and their settings58, one may expect today's hackers, operating
similarly below our normal sight, to hold and sometimes express a range
of standards by which they judge themselves and their peers.

IV.  Methodology
	I will look at "unauthorized access" or "computer crime" starting
with the already technical definition given by the law, and ask how
people interact with, frame, typify, and view those "things" (as the law
sees them) that fall into the domain circumscribed by the legal
definitions.  I will also examine the framed59 practices of the
participants, defined though their own interactions with their social
environment and shaped in their past experiences.  Specifically, I will
be seeking to construct a descriptive ethnography of current practices
regarding the gaining and exploiting of unauthorized access, the ways in
which such practices are used to formulate status among hackers (and to
generate and reinforce identity as a hacker), and to document and
analyze the discussions and social activities of participants with other
hackers in their circles of association.  Many questions then arise from
the interface of social practice and legal definitions:  What focuses a
hacker's attention on a particular target?  What are the meanings and
variant interpretations of authorization?  What activities tend to lead
to, and follow, gaining control of a system?  How do they go about
analyzing the target as part of their attack?  What do they do to gain
control of the target, and what do they do with that control once they
have it?  How do they discuss their activities among themselves, and
what information do they trade?  In what ways do their activities
indicate they do or do not conceptualize various forms of ownership
differently from the legal framework?  In what ways do their similar or
differing comprehensions relate to their experiential backgrounds?  How
do occupation, identity, class, ethnicity, or other background
differences correlate (or not) with these understandings?  How do they
conceive of the laws that apply to their practices, and how do those
conceptions differ from the actual application of the law to such
practices?
	Participant observation, to discover and understand the practices
and circumstances that engender and support hacking as a social
phenomenon, will include actively taking part wherever legally and
practically possible, and will extend to most areas of the hacker social
sphere.  The study will thus include participation in the community in
person, through group dialogs carried over the Internet's IRC60
services, on the USENET set of distributed discussion groups
("newsgroups"), on private computer bulletin boards, and over other
electronic media.  I will also participate in larger non-electronic
social forums, gatherings, informal meetings, and conferences.61 
Unstructured and semi-structured interviews, and short questionnaires
will round out the field data gathering with the aim to elicit the
participants' own, emic points of view on their activities, record life
histories, and perceptions of the legal system outside the group
context.  Other techniques may need to be generated in order to better
record and make ready for analysis the practical activities of the
participants.62
	 At the same time, I will seek to assemble a timeline of
unauthorized access legislation and cases.  The legal history of hacking
attempts is often a topic of discussion for hackers, who are quite aware
of the arrests, charges, and subsequent results, in general, and I
expect them to be both a resource for pointing to material existing only
at the trial or police record level, and a source of commentary on the
history as I construct it.  I will also be gathering and reading the
plethora of journalistic accounts, technical reports of intrusions
issued from the computer security field, and the various
underground-produced journals, 'zines, handbooks, documents, and
g-files63 pertaining to hacking.  
	In the last month of the study, I will examine several recent
unauthorized access cases, in light of the socio-legal history, and the
participant/observation work, to draw out the relations between the
legal and underground understandings and perceptions of hacking, where
they meet, and where they collide.  This phase will involve some
courtroom observation, interviews with litigation participants and
attorneys, close analysis of transcripts, and finally, preliminary
preparation of an analysis and discussion of how any dissonances between
the dominant legal culture's view of informational property and the
various groups' understandings play out in legal conflicts and their
resolutions.
	At all times, participants whose activities may involve serious
violation of someone's intellectual property rights or other criminal
activity will be given the opportunity to have me observe as an attorney
as well as a researcher, for the purposes of evaluation and ultimately
to give legal opinions regarding such activities, which affords them an
enhanced degree of anonymity and legal protection from disclosure
through the invocation of attorney/client privilege.  All records, field
notes, and information related to the activities of any participant in
the study will be maintained in strongly encrypted form;64 the notes and
subsequent publications will omit real names, will not use real
"handles,"65 place names, or other particulars that could be used to
identify the participants and place them at risk.  All participants will
be aware of the nature of the study, the precautions I will be taking,
and will be allowed to scrutinize resultant work prior to publication.

VI.  Researcher Background and Additional Support
	My preparation for this project includes a background in Law and
Anthropology; in May 1993, I was awarded a joint J.D./A.M. in Law and
Anthropology from Duke University; my thesis was a critical survey of
jurisprudential and anthropological approaches to examining processes of
conflict resolution.  In July, 1993, I sat and passed the Illinois State
Bar Exam, and qualified for practice as of December 1993.  While
simultaneously in my current program at the University of Chicago, I
volunteered for two years as a part-time "in house counsel" and systems
administrator to a start-up Internet service provider that catered
primarily to the arts community in Chicago, and continue working as a
UNIX and network security administrator; I regularly engage with issues
of provider and client preconceptions of the law being significantly
different than the actual law, and with issues of security and privacy. 
The study continues preliminary contact and participant observation work
begun July, 1995, in Chicago.
	Two professors of law have agreed to review my legal analysis and
historical material.  They are Professor David Lange of Duke University
School of Law, an intellectual property professor; and Professor David
Friedman, formerly of the University of Chicago School of Law, now of
the University of California, Santa Clara Law School, whose focus is on
technological development and social change's intersection with the
legal system.

VII.  Project Timeline
Ethnographic fieldwork:
6 months	Primary fieldwork in Chicago
		weeks 1-2 	- initial questionnaire, opening interviews.
		weeks 3-	- participant observation, unstructured and semistructured
						interviews, possible video work.  

1 month(total) Intensive fieldwork and interviews with hacker participants
               in New York and San Francisco, following pattern of Chicago work.

4 months	Second round of fieldwork in Chicago
			-Participant observation.

Contemporary unauthorized access cases:
1 month
	weeks 1-2	- Review of major cases, published decisions.
	weeks 3-	- Review of unpublished trial decisions, police records,
	                  warrants, and other legal documents.

Wrap-up:
2+ weeks	Follow-up interviews with participants, as well as with
			attorneys and representative persons involved in
			recent cases.

2 months	Review of assembled cultural material, journalistic
			accounts, and documents produced by and for the
			underground.


VIII.  Significance of the Research
	The project will explore the intersection between some commonplace
practices of a particularly demonized subculture and official discourses
specifying "acceptable" practice.  As Denning notes, the "issue is not
simply hackers vs. system managers or law enforcers; it is a much larger
question about values and practices in an information society."66   For
anthropology and jurisprudence, questions arise of how and why laws fail
to affect behavior, and how criminal laws may produce new, even more
undesirable behaviors; how social background may affect interpretations
of the law; and how self-reproducing subcultures of illegality can arise
in an antithetical relationship with new laws.  An exploration of how
parts of a society come to view legal boundaries as unethical or
irrelevant, producing a 'bandit' class, and perhaps why, may also help
shed light on a number of anthropological issues, such as what
constitutes culture; how does culture differ from society; how does
enculturation affect one's later absorption of social ideas or mores;
and what significance for studies of non-Western cultures does the
finding of a breakdown of commonsense  hegemony in the United States
have:  "Their acts . . . a commonplace of eighteenth-century life,
challenge an historiography that is increasingly complacent about the
social harmonies of that society."67    By bringing to the study both a
technical legal and anthropological background, I hope to ensure that
assumptions about the content of either realm of inquiry will be well
based and that the questions of both will be addressed.

  
Endnotes

1 See, inter alia, Goldstein, 1994; Stone, 1994; Hills, 1993; U.S. v.
Shadowhawk; U.S. v. Riggs and Neidorf II; U.S. v. Grant, Darden, and
Riggs; U.S. v. Fernandez.

2 CERT, the Computer Emergency Response Team organized under the
auspices of the Defense Advanced Research Projects Agency (DARPA)
reported "under 200 incidents in 1989, about 400 in 1991, 1,400 in 1993,
and around 2000 in 1994".  Not all incidents involve a single system,
and reported incidents are likely a small percentage of actual
incidents, the number of which remains indeterminate as a result of poor
security and skilled intruders (Icove, et al.:1995:14).

3 CERT Advisory CA-95:18, 1995.

4 Silverman, 1995.

5 For instance, a variety of packages exist to circumvent AOL's account
limits, including the package "AOHell," which included a checksum-valid
credit card number validator, which prompted AOL to change its online
subscription policy to include immediate credit card validation, and to
alter its host and user software in response.  A new version of AOHell,
circumventing the new system was released scant weeks later.  Similar
packages exist for use on Prodigy and CompuServe.  These services'
software packages, interestingly, are designed with the novice in mind,
and in the hands of a good programmer or experienced network software
user, are more limiting than access-providing, even with the use of the
access-control subverting software.  One must wonder who then writes
such sophisticated software (that subverts system access control, and
yet is easy enough for the non-programmer users of such services to
employ), releases it into general distribution, and why.

6 But only when those opponents have entered into personal
communications with those who characterize themselves as 'hackers' -
meaning people who gain unauthorized access to computer systems of
various kinds.  See, e.g., Denning, 1990, abstract.

7 By this often used, and ill defined term, I mean only the set of
people who call themselves hackers, meaning they enter and manipulate
computer and communications systems without authorization, and
communicate with others who do the same.

8 See, e.g.  Savage, 1994.

9 Meyer, 1989; Denning, 1990; Mizrach, 1995.

10 Rosteck, 1994.

11 e.g., Idaho Statutes 18-2202(4); Indiana Statues 35-43-1-4(b).

12 Cook, 1995; Denning, 1990.

13 E.g., Spafford, 1991.

14 Cook recounts, for example, Phil Zimmerman's production of PGP
("Pretty Good Privacy"), a public-key encryption program, in order to
"innoculate the body politic from the danger of government prying" as
the threat of the Federal Government outlawing encryption seemed to
grow.  Cook, 1995.  Cf. Rosenthal and Miller, 1994.

15 Aside from the large-scale changes wroght by the Berne Convention
Implimentation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (Oct 31,
1988), and the Computer Fraud and Misuse Act of 1988 (18 U.S.C. 1030
(1988), many states continue to amend their computer crime statutes on a
nearly annual basis.  See Cook, 1995.

16 Roush. 1995.

17 Boucher, 1995, reports on a cellular phone cloning ring broken by the
Secret Service.

18 Meyer, 1989; Meyer and Thomas, 1990; Denning, 1990; Kumar 1995. 

19 Barlow, 1990.

20 Hafner and Markoff, 1991; Sterling, 1992; Slatalla and Quittner,
1995; Goodell, 1996; Shimomura and Markoff, 1996; Littman, 1996. 

21 Rosteck, 1994.

22 Denning, 1990, S8.

23 Id.

24 Rosteck, 1994:'Conclusions and Summary.'

25 E.g., Shimomura and Markoff, 1996; Slatalla and Quittner, 1995;
Sandberg, 1994; Johnson, 1994; and Bauman, 1994.

26 E.g., Sterling, 1992; Littman, 1996.

27 E.g., Steele 83; Stallman, 1984.

28 Denning 1990:S2.

29 See, for example, Annalisa Savage's documentary tour of hacking
throughout western Europe and North America:  Savage, 1994.

30 E.g., Hay, 1975b; Taylor, 1989;  Darian-Smith, 1995.

31 Hay, 1975a:23.

32 ". . . rather than terrifying criminals, the death penalty terrified
prosecutors and juries, who feared committing judicial murder"(id.).

33 Hay, 1975b:189, 253.

34 Id., 207.

35 Id.. 202.

36 Hay, 1975b, 203.

37 See Rosteck, 1994.

38 e.g., Adas, 1981, Comaroff, 1985; Comaroff and Comaroff, 1991, 1992;
Kesing, 1992; Ong, 1987, Ibrahim and Talib, 1983.

39 Comaroff and Comaroff, 1991:31

40 Id.

41 Id., 25, discussing Gramsci, 1971.

42 See Gluckman 1945.

43 Coombe, 1991.

44 Coombe, 1991:1880.

45 Meyer, 1989; Meyer and Thomas, 1990; Denning, 1990.

46 Durkheim and Mauss 1963:84.

47 Bordieu 1977:79.

48  "In the experience of dialog, there is constituted between the other
person and myself a common ground" (Merleau-Ponty 1962:354).

49 Schutz 1966:176.

50 Silverstein 1979:201-02.

51 Ibid.  194.

52 Ibid.  203.

53 Ibid.  194.

54  Not being much of a structuralist myself, I would prefer to think of
these "structures" as internally explicated patterns of behavior and
activity (praxis, really) and externally observed patterns of activity,
which may or may not be conceived as meaningful in the "internal" point
of view.

55 Garfinkel 1967:35-38.

56 Silverstein 1979:204.

57 Garfinkel 1967:36-38, citing Schutz.

58 ". . . the practices were rigidly defined by custom, and the goods
involved were sharply distinguished from other property."  Hay
1975(b):208.

59 I am using "frame" in Hanks's (1990) sense of a structuring or
patterning of behavior within a "framework" that lends meaning to the
frames while also limiting the potential range of sensible frames to be
enacted and itself being constituted in part on past framed actions. 
Frames provide meaningfulness to practices by organizing them against a
framework, or "indexical ground"  that may be specifically or implicitly
referenced by the framed activities themselves.

60 Internet Relay Chat, a large set of public access systems on the
Internet that rapidly share between them messages on various "channels,"
allowing the effect of group conferencing through the typed word.

61 Indeed, hackers organize conferences.  At present, there are three
major annual conferences in the United States -- SummerCon, DefCon, and
PumpCon -- plus the apparently defunct HoHoCon.  All tend to be well
attended by hackers, hangers-on, security professionals, and federal
agents, and are replete with the range of easily imaginable resultant
problems (Rosteck, 1994). 

62 For instance, some recordation of participants' activities on digital
video tape may be undertaken to better understand methodology and
preserve an observational record.  The idea to tape and analyze hacking
actually comes from some hackers who are willing to help blank faces and
disguise voices on a digital video tape of themselves and some others
"hanging out" and doing some hacking.  As well, Annalisa Savage's film
"Unauthorized Access" (Savage 1994), which gives a view of hacking
activities as they occur and records hacker's explanations of those
activities, will be used as source material.

63 "General files" -- documents in plain text on a variety of topics. 
Background suggests the term comes from classifying items for retrieval
on bulletin boards, where one would have programs of various kinds, and
a place for non-program, "general files."

64 I will be using military-grade triple-DES or a similarly strong
encryption algorithm through the Cryptographic Filing System (CFS) by
Matt Blaze; information is available via electronic mail from
cfs@research.att.com  --  CFS is a publicly scrutinizable (open source)
package, freely distributable subject to U.S. ITAR export restrictions.

65 As with C.B. radio, a "handle" is one's pseudonym, or use name, a
kind of street name that helps protect identity, while allowing one to
nevertheless gather social capital to a consistent identity.

66 Denning, 1990:S8.  C.f. Coombe, 1991:1861: ". . . intellectual
property laws may function to deprive us of possibilities for dialogic
interaction with the cultural reality or lifeworld known as
postmodernism."  By this, I take Coome, in light of her article, to mean
that this deprivation is a generic function of intellectual property
laws in postmodern experience, rather than a culturally specific effect;
 and c.f.  Lange, 1991, noting the use of copyright as a means by which
non-governmental organizations can accomplish censorship of their
critics.

67 Hay 1975(b):253.  Hay was, of course, referring to poachers in
eighteenth-century England.

  

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