Swatting political discourse: a domestic terrorism threat.

• Author: Enzweiler, Matthew James

INTRODUCTION

In late August 2014, the social media world was overtaken by the shocking story of a fifteen-year-old online gamer, Paul Horner, who was reportedly sentenced to twenty-five years to life in prison for his role in what has been perceived as a mere online prank. (1) According to the story, circulating on popular media outlets including Facebook and Twitter, "'[w]hat many teenagers ... are considering a harmless prank ... landed one online gamer in more trouble than he could have ever imagined.'" (2) The article continued by identifying that supposed "harmless prank" as an act known as "swatting" and reported that Horner's role in the swatting constituted domestic terrorism, resulting in a sentence of twenty-five years to life. (3) While the story ultimately proved to be a hoax, it nonetheless shed light on swatting as a dangerous intimidation tactic that is growing increasingly common across American communities and prompted a number of prosecutions and convictions nationwide. (4)

The act of swatting involves individuals making fraudulent 911 calls and reporting threats or ongoing violent situations in order to draw a response from law enforcement, usually a SWAT team. (5) Through the use of deceptive means such as Caller ID spoofing technology, individuals placing the call make it appear as though the threats or emergency reports are coming from the victim's phone. (6) The authorities respond with weapons drawn, expecting a high-risk incident, thereby creating a dangerous situation for the unsuspecting swatting victim and police alike. (7) From the time swatting was first brought to the attention of the FBI in 2008, (8) the phone hacking phenomenon has grown increasingly popular, particularly in the realm of online gaming and in use against Hollywood celebrities. (9) In these areas, swatting functions primarily as a prank, albeit a very dangerous prank. Swatting presents a high degree of danger not only for the victims staring down the barrel of SWAT team guns, (10) but also presents peripheral danger to the community and the law enforcement officers themselves as they rapidly respond to the false reports. (11) Additionally, the mass response by authorities to false reports is further damaging as it is highly expensive and threatens the effectiveness of our law enforcement agencies. (12) Clearly all instances of swatting present a real threat to safety in American communities, however, as the practice has grown increasingly prevalent, there have been instances of its use for far more alarming and disconcerting purposes meriting a closer examination of the legal recourse necessary to combat swatting.

As stated previously, swatting is most prevalent in the online gaming community where individuals regularly interact anonymously and personal information is easily accessible to Internet hackers seeking to intimidate fellow gamers. However, as early as July 2011, several conservative political commentators were victims of swatting incidents resulting in responses from authorities at their homes. (13) The use of swatting as a form of political intimidation against the ideals of another by placing them in potentially dangerous situations is of grave concern and must be addressed. Such politically motivated swatting activities bring to the fore a sinister application of this phenomenon, in which it is aimed at silencing particular viewpoints in political discourse. Such actions threaten not only the safety of the parties involved, but at a deeper level pose a threat to the viability and integrity of the American political system, which is heavily reliant upon free expression. While certainly the classification of a teenaged gamer, such as Paul Horner mentioned at the outset, as a domestic terrorist for his actions in a swatting scandal is a fiction, recognition of this political threat raises the question of whether or not swatting in the political context is deserving of treatment as domestic terrorism and the heightened sentencing that comes with that designation.

This Note will attempt to address the question of whether or not incidents of swatting aimed at contrary political ideals meet the characterization of domestic terrorism in the post-9/11 era. In particular, there will be consideration of the extent to which treatment of political swatting as domestic terrorism is consistent with the maintenance of the delicate balance between public safety concerns and protection of the constitutional values of free speech and free expression. This Note will proceed in four parts. Part I will examine the growth of telecommunication manipulation practices from products of curiosity to an alarming means of intimidation in modern day swatting and the dangers swatting presents to American communities. Part II will offer a history of the development of domestic terrorism in American jurisprudence and discuss the current state of domestic terrorism in the post-9/11 era. Part III provides context for the application of the domestic terrorism classification by offering examples of domestic terrorism in U.S. history, particularly the rise of "special-interest" domestic terrorism. Finally, Part IV analyzes political swatting in light of domestic terrorism requirements grown out of the PATRIOT Act (14) and in comparison with prior examples of crimes classed as domestic terrorism. Part IV concludes with the argument that, in light of the definitional requirements of domestic terrorism in the United States and strong public policy interests, swatting should in fact be classified as an act of domestic terrorism when used to intimidate political adversaries or coerce advocates of a particular viewpoint to withdraw from participation in political discourse.

I. SWATTING: A DANGEROUS TAKE ON AN OLD CRIME

1. Predecessor to Swatting

   While swatting is a relatively young phenomenon, crimes involving the manipulation of technology integrated in telecommunication channels dates back several decades. An early predecessor to modern day telephone and computer hacking was a practice that came to be known as phone "phreaking." Phreaking was a term used to describe practices in which individuals would "study, experiment with, [and] explore telecommunication systems, such as equipment and systems connected to public telephone networks." (15) In the 1950s and 1960s, phone phreaking arose out of curiosity on the part of intelligent youth including, but not limited to, students from some of the nation's top universities. (16) In those early days, the exploration and manipulation of telecommunication channels was not prompted by money, but rather a mere fascination with the virtual world in which phreakers could interact and explore the bounds of new communication technology. (17) Phreaking reached its peak in the early 1970s when John Draper discovered that the emission of precise tones, at precise times, enabled users to make free calls through pay phones. (18) On the heels of Draper's discovery, phreaking exploded in popularity and the practice began to take on economic significance as parties used those exploitation tactics for a variety of purposes ranging from Caller ID manipulation to free teleconferencing. (19) As technology changed and telephone networks became increasingly computerized, the underlying concepts established by early phreakers heavily influenced the development of more complex and sophisticated manipulation practices such as computer hacking. (20) Today the legacy of phreaking lives on as manipulation and exploitation of telecommunication technology continues. However, what was initially motivated by curiosity and fascination now often serves as a vehicle for economic gains, (21) and has seen application in far more sinister spin offs such as swatting.

2. The Mechanics of Swatting and SWAT Deployment

   Having developed along with modern technology and drawing upon the methodology and discoveries generated by phreakers, a modern day "more serious twist on [that] old crime" has manifested itself in the practice of swatting. (22) Advances in modern technology have made masking the origin of calls easier than ever, which in turn has substantially contributed to the increased pervasiveness of swatting instances as the body of individuals capable of carrying out the acts has broadened. (23) Swatting refers to the practice of making a hoax call to 911 prompting the deployment of a SWAT team response. (24) To prompt the response of a SWAT unit, swatters describe a highly dangerous situation unfolding, often involving claims of weapons, violence, and a continuing threat to the safety of the community. (25) Through the use of Caller ID spoofing, (26) swatters are able to make the fraudulent phone call appear as though it is coming from the residence or business of their intended victim, thereby directing the SWAT response to that location. (27)

   To appreciate the gravity of the danger resultant from such acts of swatting requires an understanding of SWAT teams and the functions they serve. SWAT units first came into existence in the late 1960s with the recognition that the ordinary police officer was not adequately trained or equipped to handle "incidents in which the slightest slip could cost many lives." (28) Therefore, SWAT teams exist to provide a police force capable of adequately meeting the unique challenges of high-risk situations. (29) Today, the majority of police departments have either their own SWAT team or access to units capable to providing such high-stakes response services. (30) These teams are specially trained and equipped to face the most severe threats encountered by law enforcement and their deployment often entails the expectation of heavy violence, making such instances highly dangerous and tense. (31)

3. Modern Day Instances of Swatting and the Dangers Presented

   The phone-hacking phenomenon known as swatting was first brought to the attention to the FBI in 2008 (32) and has since experienced...