Criminality on the electronic frontier: Corporality and the judicial construction of the hacker

Abstract

In this essay, I examine the representation of hackers in popular and, most important, judicial discourse to explore how hackers are defined both popularly and legally in terms of criminality. In tracing out the discourse of ‘computer crime,’ I argue that discourse about hackers’ criminality is focused on issues of the body, addiction and performance. The domain of hackers is generally considered a ‘virtual space,’ a space without bodies. The technology of punishment, however, has it roots firmly established in mechanisms that relate almost exclusively to the body. Even surveillance, which takes the body and the visual as its target is problematized by the notion of virtual space. As a result, hackers, as noncorporeal criminals, have corporeality juridically forced upon them. Crimes, such as trespassing, which occur in virtual space need to be documented in the physical world and attached to bodies. Attaching these crimes to the hackers’ bodies does two things: first, it focuses on acts of possession rather than performance, and, second, it focuses attention on the hacker's body through metaphors of ‘hunting’ and ‘violence.’ This essay illustrates the difficulty that the legal system has in the representation of hackers as criminals. Accordingly, it is the possession of secrets (such as passwords) that law prohibits, not the actual use of them. As a result, criminality becomes defined by possession, rather than action. There are striking parallels between the discourse of computer crimes and those of drugs. Hackers are often seen as ‘addicts,’ unable to control their compulsions — virtual beings who sacrifice their bodies to the drug of technology. The physical connection to technology itself is seen as the source of their criminality, as a performance of addiction, and courts have gone as far as banning hackers from touching computers, using touch‐tone phones, or even being in the same room as a modem.