When Vetting A Candidate Becomes a Federal Offense

Bad news, guys: The penitentiary you're headed for isn't one with conjugal visits.

In light of the revelations that certain members of the ever-decent online Left* hacked in to Sarah Palin’s email account, we have learned that both the FBI and the Secret Service are investigating the matter. I’m sure some may wonder, Is it actually a crime to read someone’s email without their permission? Allow me to clue in any crying little girl who thinks that breaking into candidates’ email is just part of the normal vetting process: Yes, Andrea, it is a Federal crime. In fact, unauthorized access of email may run afoul of any one of three Federal criminal statutes, or a combination of the three (depending on the method used to intercept that email). And that means loads of fun for some of our favorite people in the whole universe.

The first and most obvious statute that would apply to the interception of virtually any email from an email inbox is the Stored Communications Act, 18 U.S.C. 2701 et seq. This act provides that any person who:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

Subsection (b) basically provides that for a first offense, you can be fined or put in jail for a term of less than one year or five years. The five year penalty is authorized “if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State[.]” I’m betting the Government can find a way to make “in furtherance of a tortious act” stick in this case on an invasion of privacy theory. Note that the civil portions of this statute have been used against persons who came by passwords by nefarious means, or merely continued using a password after they should have known that the use was no longer authorized, not merely “hackers.”

That’s right, guys. Five years. I’d get my plea bargains or tissue expanders ready. Your choice.

The second statute which might possibly apply is the Wiretap Act, 18 U.S.C. 2510 et seq. The Wiretap Act is a much more difficult statutory scheme to encapsulate, but it has been interpreted by most courts to apply to the interception of electronic communications (such as emails) only if such communications are intercepted simultaneous to transmission. This is, of course, nearly a technological impossibility, and in any event, appears to not apply to this case, since the hacker apparently retrieved the emails after they had reached Palin’s inbox. There is a minority view that the Wiretap Act should still apply to emails that are held in “temporary electronic storage” such as en email inbox, but there is a persuasive argument (noted by the First Circuit en banc in United States v. Councilman) that the Patriot Act specifically removed electronic communications retained in temporary electronic storage from the purview of the act so as to provide greater latitude to the Government to retrieve things such as voicemails without the strictures of the Wiretap Act. This reasoning would seem to apply to the Wiretap Act as well. However, in the event that a Court did not adhere to this view, not only would all those who intercepted the emails be criminally liable, but also all those who either use or disclose the emails knowing that they had been illegally intercepted. So there’s a nice happy thought for Gawker and all the other websites that are posting the emails right now.

A third statute which might possibly apply (depending upon the method used to intercept the emails) is the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et seq. As with the Wiretap Act, the statutory scheme of the Computer Fraud and Abuse Act is somewhat difficult to navigate, and some Courts require an act of actual hacking or virus spreading before the CFAA will apply. However, a broad reading would apply the CFAA to every individual who accesses a protected computer or exceeds authorized access and thereby either obtains a thing of value or causes loss. Courts have used this statute to find defendants civilly liable for, among other things, using bots and scrapers to obtain unauthorized information off of websites – even public websites – when the person utilizing the bot or scraper knew that they were not authorized to access the website in that manner.

This isn’t even getting into my favorite part: RICO. Magical, wonderful RICO, which catches everyone wrapped up in this little game right now. Because one of the questions working the backend of the internet right now is whether the hackers got Mrs. Palin’s file by asking for her password from Yahoo!, using personal information to answer the security question Yahoo! would ask. Where would they get that? you ask. I can think of one likely source. In point of fact, I can think of several, one of which is largely run by a fellow known for professional grade astroturfing. You can put the pole-like objects together, I’m sure.

And I can think of the enterprise so easily.

The intrusion into Sarah Palin’s email inbox was not merely a scummy invasion of privacy. It was also almost certainly a federal crime, one that the FBI and Secret Service are investigating. (And the Secret Service tends to look at this sort of thing … personally.) This isn’t merely part of “politics ain’t beanbag,” it’s criminal. And anyone encouraging these criminals or utilizing the fruits of their crimes is tossing in with the criminals. I think we’ll see in the next couple of days which side the media and Obama’s campaign (but I repeat myself) stand on.

And guys? All that time being scared of John Ashcroft all those years ago? This time, it’s for real.

Game on, cretins.

* I once referred to these folks as “ghoulish and deranged,” and another time as “yard apes,” a term I learned from reading Garfield comic strips when a child. I hereby apologize for the slurs I’ve therefore leveled on the undead, the murderously psychotic, and primates who run wild in garden areas.

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