"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
Justice Oliver Wendell Holmes, Jr. wrote that familiar analogy in the Supreme Court case Schenck v. United States. The underlying premise of Schenck limiting the First Amendment was later narrowed in Brandenburg v. Ohio in 1969 to only prohibit only speech that could cause imminent lawless action.
Earlier this week, after the Associated Press's Twitter account was hacked to broadcast the message “Two Explosions in the White House and Barack Obama is injured,” the stock market fell as the false news rapidly spread. While the markets quickly recovered when the truth was revealed, the incident raises an interesting question: How should we treat the Internet equivalent of falsely yelling fire in a crowded theater in the hacking realm?
While law enforcement is certainly investigating the breach, depending on the nature of the hack, the perpetrators could potentially be prosecuted under the Computer Fraud and Abuse Act. But spreading misinformation through hacking in and of itself is not a crime. While the CFAA does make it a crime to intentionally access a computer and cause damage or loss, it’s not clear that causing cascading events equivalent to a riot would be covered.
While the AP twitter fiasco may not be the best example, what if hackers distributed information during a disaster or attack that caused widespread havoc? Should the law criminalize non-military information warfare resulting from hacking? Is it even possible to codify the law in such a way that it would survive a legal challenge?
For now, existing laws will have to suffice, even as Congress attempts to revise the CFAA to make it stronger, as Rep. Bob Goodlatte, R-Va., and others have advocated, or narrower to avoid potentially questionable prosecutions, as Rep. Zoe Lofgren, D-Calif., has called for.