BOB GARFIELD: This week the U.S. Ninth Circuit Court ruled that an anti-hacking statute called the Computer Fraud and Abuse Act, could not be used to prosecute a man named David Nosal who was accused of convincing some former colleagues to give him access to a data base in his old job.

Observers had opined that this decision could have ramifications in the case of suspected WikiLeaker Bradley Manning, who is also charged, at least in part, with violating the CFAA.

At stake is the legal definition of what constitutes a hacker. In a piece that originally ran last fall, OTM Producer Alex Goldman says that the cultural definition of the term “hacker” has undergone a stunning transformation since it first entered the lexicon in the late 1950s.

ALEX GOLDMAN:  It seems like over the past couple of years we are constantly hearing stories about high profile hacks.

MALE JOURNALIST:  A British tabloid is being accused tonight of going much too far to get a story. Mark Phillips reports the newspaper hacked into the phone messages of a missing 13-year-old girl.

ALEX GOLDMAN:  Guessing voicemail passwords? Not really a hack.

MALE JOURNALIST:  Supporters of the whistle-blowing website and its controversial founder Julian Assange are targeting government and private websites that have taken action against WikiLeaks.

ALEX GOLDMAN:  A denial of service attack on a website? Not a hack either.

FEMALE JOURNALIST:  A Tennessee college student has been indicted for allegedly hacking into the private email account of Alaska Governor Sarah Palin.

ALEX GOLDMAN:  That college student made an educated guess at Palin's password, sorry, not a hack! So then what is hacking? Let’s trace the term back about five decades to [TRAIN WHISTLE] a student club at MIT called the Tech Model Railroad Club.

Steven Levy, author of Hackers:  Heroes of the Computer Revolution.

STEVEN LEVY:  The people who were working underneath the table, where on top of the table there was a very elaborate train layout, called themselves “hackers” ‘cause they hacked away this very complicated system that ran the trains in a very sophisticated manner. [TRAIN WHISTLE] Hacking meant fiddling around with technology in sort of an irreverent and makeshift way.

ALEX GOLDMAN:  Previously, MIT students had used the word “hack” as slang for prank. Combining its roots in pranking and its use by the Tech Model Railroad Club pretty much encompasses what it means today.

   [BEEPING, COMPUTER WHIRRING SOUNDS/UP AND UNDER]

This original set of hackers happened to take the first undergraduate computing course at MIT, exploring these enormous expensive new toys literally around the clock. From this culture, a set of moral imperatives which Levy has dubbed the “hacker ethic” began to emerge.

   [BEEPING SOUNDS/UP AND UNDER]

STEVEN LEVY:  Things that people thought that you couldn't and shouldn't do on a computer, those are the things that hackers wanted to do. Hackers basically believe that all information should be free, that anything that keeps you away from information should be surmounted.

ALEX GOLDMAN:  As university computers began to connect to one another in the late sixties, so did the hacker. In 1975, a glossary of hacker terms was created called The Jargon File, proliferating hacker ideas and ideals. The term “hacker” expanded to include those who created open source software, specifically designed to be shared and improved upon. Hackers began to explore other people's computers too, sometimes with questionable legality. By 1983, with the release of the blockbuster movie War Games:

    [CLIP]:

JOSHUA:  Shall we play a game?

   [END CLIP]

ALEX GOLDMAN:  Popular culture had already hammered out a stereotypical notion of what a hacker is, smart, alienated, prone to illegal activity and borderline autistic.

 [CLIP FROM WAR GAMES]:

MALVIN:  Wow, where’d you get this?

DAVID:  I was trying to break in to ProtoVision. I wanted to see the program for their new games.

MALVIN:  No wait, I’m not through yet.

JIM STING:  Remember, you told me to tell you when you were acting rudely and insensitively? Remember that? You’re doing it right now.

 [END CLIP]

ALEX GOLDMAN:  War Games, about a teenager who hacks into a military supercomputer, triggering a nuclear panic, forever tainted the word “hacker,” even though it's never actually uttered in the film.

Two months after the release of the movie, the FBI raided a group of teenage hackers called the 414s. Named for their Milwaukee area code, the 414s broke into a number of high profile computer systems. Comparisons to War Games were immediate, prompting media coverage like this from CBS's Nightwatch:

FEMALE CORRESPONDENT:  …fact came a little bit too close to fiction in Milwaukee recently. Some whiz kids actually managed to dial their way into a computer at a nuclear weapons lab in Los Alamos, New Mexico. The lab says no classified information was compromised. The question remains, could it really happen.

ALEX GOLDMAN:  Seventeen-year-old Neal Patrick, self-appointed spokesman for the 414s, testified before Congress in September of 1983 about computer security concerns. Congressman Dan Glickman opened the proceedings by saying, quote. “We're gonna show about four minutes from the movie War Games, which I think outlines the problem fairly clearly.”

Within months a flurry of legislation was introduced specifically targeting this kind of intrusion. And in the public eye, the word “hacker” became synonymous with criminal.

NYU Assistant Professor Gabriella Coleman says that by the late eighties hackers started to try to reclaim the word.

GABRIELLA COLEMAN:  Some hackers came up the term “cracker” which was meant to differentiate what a hacker means from a cracker, which is someone who breaks into a system maliciously and -- or with malicious intent or engages in destruction or theft.

ALEX GOLDMAN:  The hacker community wanted the media to make a distinction between hackers and crackers, but the distinction never stuck, partly because every self- respecting hacker has a different definition of the term. For instance, security-conscious hackers will say:

GABRIELLA COLEMAN:  You know, those free and open source software developers, those are not hackers. These are just building and tinkering. I've also heard among free and open source software hackers who consider any form of transgressive hacking as that which doesn't qualify under the rubric of hacking, ‘cause hacking is only constructive.

And so, there are many times where people will point fingers and say, ah,  that's not really part of the hacking community.

ALEX GOLDMAN:  In the hacker community “hacker” has always been something of an honorific, a title that cannot be self-proclaimed, only bestowed. If you call yourself a hacker, chances are you're not.

Anonymous, the notorious collective of Hacktivists implicated in some recent attacks, definitely contain some old school hackers, but the majority use a preexisting program called the Low Orbit Ion Cannon to take down websites. The hacker community derisively calls these techno opportunists “script kiddies.”

GABRIELLA COLEMAN:  “Script kiddie” is such a great term to designate those participants/actors who may be engaging in something that looks like hacking but doing so in the most kind of unthoughtful, unintelligent way, where you're just kind of using a tool to, let’s just say, break into a system. It's sort of like a hacker wannabe, without the technical skills.

ALEX GOLDMAN:  In fact, in recent years, the word “hack” has been somewhat rehabilitated. Take, for example, Danny O'Brien, the technology journalist who works for the Committee to Protect Journalists. In 2004, he coined the phrase “life hacks” to describe applying the efficiency and creativity of hacking to things like making tea or setting your alarm clock.

DANNY O’BRIEN:  I'd been tracking how a lot of geeks seem to be incredibly productive. They all have these little sort of systems for organizing themselves. And so, it seemed very sensible to call this “life hacks” because these were geeky people, they were hackers and they were sort of applying this semi-scientific, semi- engineering approach to things like,  you know, getting out of bed on time, which is something I find impossible.

ALEX GOLDMAN:  Which is not to say that the hacker

community necessarily appreciated it.

DANNY O’BRIEN:  I have a small twinge of guilt because as soon as I coined this term, “life hacks” it became part of a pattern of the word “hacks” being over-applied or  applied in ways that some people who use it don't necessarily agree with, right?

As soon as people started thinking of these things as life hacks, people would post things going, “Oh I found a new way of tying my shoe laces, and I’m hacking my shoes right now.”

STEVEN LEVY:  When you go to Silicon Valley and you talk to start-up people, they all talk about - we want to hire hackers for our company.

ALEX GOLDMAN:  Steven Levy suggests that “hack” may be regaining its original meaning.

STEVEN LEVY:  Mark Zuckerberg of Facebook says we want this to be a hacker company. You go to Facebook Headquarters, there's a big sign saying “Hack.” And Facebook isn't breaking into other people's computers. They're talking about coming up with really good products, and those are the kinds of people they want.

DANNY O’BRIEN: I think we already have a more nuanced idea of the word “hack” compared to this very sort of one or the other idea that we had in the eighties.

ALEX GOLDMAN:  Danny O'Brien says it no longer summons up mad scientists or hapless teens.

DANNY O’BRIEN:  The word “hacker” internally in the subculture is incredibly subtle, and I do think that subtlety is gradually beginning to bleed into its use in the mainstream media too.

ALEX GOLDMAN:  But subtlety is not a media strong point. So what does this debate over the word leave us with? A mysterious set of evolving skills and shifting ethics, an annoying feeling of uncertainty, just like how many old media types feel about new media. But the media have to do a better job of distinguishing among actors in this ongoing drama. Otherwise, the only unambiguous hacks will be the reporters themselves. Well, you know what I mean.  For On the Media, I’m Alex Goldman.

 [MUSIC/MUSIC UP AND UNDER]

BOB GARFIELD:  To learn more about the Ninth Circuit decision on the Computer Fraud and Abuse Act, check out an explainer on our blog at onthemedia.org.

That's it for this week's show. On the Media was produced by Jamie York, Alex Goldman, PJ Vogt, Sarah Abdurrahman and Chris Neary, with more help from Luisa Beck and Rob Schoon, and edited this week by our Senior Producer Katya Rogers. Our technical director is Jennifer Munson. Our engineer this week was Andrew Dunne.

Ellen Horne is WNYC’s senior director of National Programs. Bassist composer Ben Allison wrote our theme. On the Media is produced by WNYC and distributed by NPR. Brooke Gladstone will be back next week. I’m Bob Garfield.

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