This will have to be a synopsis of this topic, so let’s call it an alert, a bulletin, an alarum.

For the second time in two weeks, evidence that your rights are seriously threatened has surfaced in the New York Times, and hasn’t really been addressed.  On January 15th, it was the article by William J. Broad et al. about Stuxnet.  I’ve had a drop dead month, I managed to get out a little bit about it on a comment at Salon, you lose a lot if they manage to define a cyber war and you end up in it with your rights defined by the laws of armed conflict as lex specialis, the internet as the battlefield, you as a civilian directly participating in hostilities, and what you thought were your first amendment rights as inter bello legis silent. In other terms, you should demand that people tell you where the war is, what it means to have a cyber war, what it means to be hors de combat in one, what a civilian and a combatant are, what a weapon is, who is fighting whom, and who has declared war on whom, and how you know a war has started or ended. Failing that, you should not allow your government or any corporation or mercenary contractor to use such terms. Ever.

Now today, as part, it seems to me, of just such a “war” from their point of view, we see another broad assault on rights come into view. Keep in mind, neither of these assaults is new, just that they show themselves from time to time and we get progress reports. We also get progress reports on how out of it the opposition is. And in this case, there is a deafening silence from the opposition to both assaults. Today was Charlie Savage’s article on the FBI going after Operation Payback. It’s interesting, given that most of the arrests were in Europe, but it’s also interesting in that for all the support that Wikileaks has had from civil libertarians — supporting a free press on the internet — Operation Payback was dismissed by many of the same people as juvenile hacking, instead of freedom of assembly, an equal and equally important one of the 5 rights guaranteed by the First Amendment in the United States, and by the ICCPR internationally.

None of the rights in the Bill of Rights exist on the internet securely because the speech, assembly, and publication that appear there, are concurrently files on corporate servers which coexist as private intellectual property.  They may be subpoena’d instead of searched with warrants.

None of them are secure because when the internet can be defined as “critical infrastructure” the speech and assembly there can concurrently exist as a battlefield of war and programs and communications as weapons, and servers and corporations as military objectives and casualties and damage and threats to existence peaceful writers as combatants that may be killed or detained for the duration of an ill-defined global conflict that may continue without end.

None of the rights are secure because “experts” with degrees in law and foreign policy, instead of degrees in computer science or client/server experience, can go into courtrooms and hold forth that any distributed denial of service (DDOS) is a malicious hacking attack that does physical damage, or an act of real war, and those sitting judgment, as ignorant as the advocate, will pass judgment without making the distinction that if all of those who participate are willing participants using their computers under their own choice and judgment, and the effect of the attack is merely to cause a server to reboot and customer inconvenience, then the nearest equvalent in the real world is not a war, and not a malicious and violent attack, and no hacking has been done. It is simply and directly a picket line, and an exercise in peaceful assembly.

Which brings up a question I asked before, in one of those links: If this is a cyber war, and the stuxnet virus is a U.S. military virus, when it ends up on my machine without my consent in my house, is that a Third Amendment violation against my being forced to quarter the government’s virtual troops?

This is an alert, a bulletin, an alarum. It starts with defining a public commons. You don’t really have these rights until you have one. That will be uncomfortable, even for companies like the blogging sites. If their fora are public commons, their commenters will have rights. Currently, even those companies treat the comments to a dual existence, as speech and as corporate IP. Newspapers treat their online articles both as press publications and as IP. A model that has evolved without much thought has been given thought by people not necessarily interested in our freedoms. And they are redefining a public commons as a battlefield, and our rights as acts of war. This is an alert, a bulletin, an alarum. Pay attention.