'Terrorist' Hacktivist

Several years ago, the FBI placed hacktivist Jeremy Hammond on a terrorism watchlist, according to a leaked document obtained by the Daily Dot in 2015 from the New York State Division of Criminal Justice Services. The Guardian UK reported that the document was marked “destroy after use,” along with a warning not to advise Hammond that he was on the watchlist. The document was dated around the time of Hammond’s arrest in 2012.

Agencies like the FBI began liberally applying the terrorist label to domestic activists shortly after launching its “war on terror” after the attacks of September 11, 2011. Environmental and animal rights activists, along with hacktivists-especially successful one, or those deemed “leaders”-were, and continue to be, prime targets. Such labeling is often a precursor to more repressive tactics, including the misuse of grand juries to intimidate activists and to pressure them into informing on others.

Indeed, just two months before he was due to be released from prison, Hammond was ruled in contempt of court in October 2019 by U.S. District Court Judge Anthony Trenga for refusing to testify before a federal grand jury in the Eastern District of Virginia. Hammond had been transferred to Virginia from the Federal Correctional Institution in Memphis, Tennessee. It is suspected that the proceedings were related to WikiLeaks founder Julian Assange.

Activists who are labeled terrorists also face the possibility of being charged with conspiracy, which requires a low standard of evidence to convict, and frequently results in harsher sentences than the underlying crime. If criminal charges are filed, labels like “terrorist” that play upon common fears often preclude the possibility of a fair and just trial.

In addition, if convicted and a federal sentencing guidelines’ terrorism enhancement is applied, longer prison sentences may attach. In Hammond’s case, he was due for release in December 2019. The civil contempt charge means his sentence is suspended, and he could serve as long as an additional 18 months. The anarchist activist already lost access to a federal Residential Drug Abuse Program that would have reduced his criminal sentence by 9 months.

Hacktivists were obvious targets for the FBI. As cyber crime increases, it’s easier to arrest altruistic hackers who broadcast their messages compared with nation state attackers.

Some believe that the government is changing the terminology from acts of civil disobedience to acts of terrorism because they can show concrete results by arresting domestic activists. Sociologist Tony Silvaggio says, “The government’s guilty-by-association and divide-and conquer approach has really succeeded. They’ve targeted this movement because it’s an easy target; Al Qaeda is… hard. They need to show the American people that ‘There are terrorists out there, and we caught them.’”  

And the path widened for broadening the definition of “terrorism” to include First Amendment-protected activities with passage of the USA PATRIOT Act in the emotion-laden days after September 11, 2001. Section 802 of the Act creates the federal crime of “domestic terrorism.” Defined in very broad terms, it includes “acts dangerous to human life” that violate the criminal laws, if their goal “appear[s] to be intended…to influence the policy of a government by intimidation or coercion.” This broad definition affords federal law enforcement wide latitude to conduct surveillance of activists and organizations that draw attention to and challenge government policies, as the essence of protest is to influence governmental policies.

In addition to the broad language of the PATRIOT Act, many different definitions of “terrorism” exist among government agencies. Some, such as the FBI definition, include “violence against property,” which can lead to the criminalization of such First Amendment protected activities as “flyer distribution” and an action that some believe is electronic civil disobedience: “inundating computers.” In contrast, both the State Department’s and the UN Security Council Resolution 1566 (2004), which helps codify international law concerning acts of terrorism, do not include violence against property.

Adequate penal codes already exist to punish individuals engaging in acts of domestic sabotage. Misuse and overuse of the term “terrorist” does little to stem real tragedies involving loss of human life. Such abuse is an affront to the Constitution and to thoughtful defenders of the First Amendment.