Cyber attacks and free speech: Is bombarding a government website with traffic a legitimate form of expression of free speech?

I heard someone ask that question a while back, and I had to ponder for a minute.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.

It's the last part that makes me wonder – "the right of the people…to petition the government for a redress of grievances."

...If I organize 100,000 people to call the Congressional switchboard all within 10 seconds of each other, and continue doing so until every one of them gets through, is that a DDoS attack? This kind of thing has happened, and it's considered part of my (and the other 99,999's) rights as an American citizen to petition the government.

...If I organize a snail-mail campaign of 1,000,000 pieces to Congress, and send them so they arrive on/about the same day, is that a DDoS attack? Again, no; it's happened, and it's considered part of my right as an American citizen to petition the government.

So what's the difference when it comes to email or other internet traffic? Why is it suddenly "cyber warfare" if I flood a website or email server, but not if I flood the post office or phone bank?

The two most common arguments I've heard are:

• In the case of letters and phone calls, the sender bears the cost of the transaction, whereas with internet traffic, the cost is so insignificant to the sender that it's effectively zero – but the cost to the receiver is high
• Government provides valuable services, and if those services are interrupted, people suffer

I'll take on the second one first.

The preamble to the Constitution of the United States of America vehemently disagrees with the notion that the government provides anything but the common defense. Government promotes the general welfare, secures the blessings of liberty - those are things the government is ordained to do. So what if the grievance with the government is that it has crept into areas where it shouldn't be?

The people who crafted the constitution believed it was absolutely legitimate for "the people" to cause the government to delay the activities of the day in order that "the people" might air a grievance. They believed this because they believed the government shouldn't be doing anything that daily impacted people's lives. In other words, they believed that if the government shut down for a day or even several, there should be no impact to the daily lives of "the people." The fact that there is an impact is evidence that the government has encroached upon the freedoms of "the people."

As for the first argument, with the advent of cell phones and IP-based home phones, the incremental cost of a phone call is effectively zero. So why is a phone call that costs nothing legitimate, but internet traffic that also costs nothing is an attack?

The answer is quite simple, I think: it's the content that's at issue, not the medium. I don't have any case law to back this up, and I don't have access to WestLaw or LexisNexis, so I'll have to wing it. Here's what I think.

Bombarding a website with malformed (or even well-formed) IP packets is akin to the childish game of Ding-Dong-Dash (yes, WikiPedia actually has a rather extensive reference for it). The point in the game is to annoy, to pester, to irritate, to be mischievous. On the other hand, ringing a doorbell multiple times at 1:00 a.m. in order to repossess a car is a legitimate activity - even though it has the same effect (annoy, irritate) on the residents. It's not the medium (doorbell), it's the payload (nothing in Ding-Dong-Dash, something legitimate in the act of repossession). A DDoS attack doesn't have a legitimate message to be aired as a grievance.

DDoS attacks via botnets could also be viewed as an amplification of one, unruly voice. In a peacable assembly you don't have a person taking refuge in the crowd while spouting vitriol on a megaphone. If you do have that idiot on the megaphone, then you don't have a peacable assembly. No peacable assembly, no First Amendment coverage.

Bottom line: Cyber attacks aren't protected under the First Amendment for two reasons. One, they are not a legitimate expression of a petition to the government for redress of a grievance; and two, they do not exist in a peacable assembly - the legitimate forum for the petition.