Palin Hackers could skate because of DOJ policy
The Department of Justice does not like a court decision over emails, and that policy could allow the Palin hackers a backdoor out of prosecution.
Though federal law prohibits the unauthorized access of someone's e-mail account, the DOJ's interpretation of one particular case might only hold the Palin hackers accountable for accessing unopened messages, according to the Electronic Frontier Foundation (EFF).
Hackers obtained access to the Alaska governor's personal firstname.lastname@example.org e-mail address this week after successfully navigating through Yahoo's password reset process. They changed the governor's password, took screen shots of the account's contents, accessed personal photographs, and sent all the data to the Wikileaks Web site.
Such action is wrong, possibly even illegal. There are laws about such things.
It all depends on which way DOJ will go on this case, with the court ruling or with its objection to that ruling. It could mean losing other cases where it has argued against the rule in order to invoke the rule for one high-profile case.
The agency's computer crimes and intellectual property division "continues to question whether Theofel was correctly decided, since little reason exists for treating old email differently than other material a user may choose to store on a network," according to the DOJ's Prosecuting Computer Crimes Manual.
"The term 'electronic storage' has a narrow, statutorily defined meaning. It does not simply mean storage of information by electronic means," according to the DOJ. "If the communication has been received by a recipient's service provider but has not yet been accessed by the recipient, it is in electronic storage. When the recipient retrieves the email or voice mail, however, the communication reaches its final destination. If the recipient chooses to retain a copy of the communication on the service provider's system, the retained copy is no longer in electronic storage."
Under DOJ's interpretation, the Palin hackers might only be prosecuted for accessing e-mails the Alaska governor had not yet opened. Based on the data leaked by the hackers, it is not clear if they opened any unread messages.
Andrew Grossman, a senior legal policy analyst at the Heritage Foundation, suggested that simply accessing Palin's account is enough of a violation to warrant some jail time.
"Federal law prohibits virtual trespassing for the purposes of stealing information," Grossman wrote in a Thursday blog post. "So cracking the password to a governor's e-mail account and perusing her messages is a clear violation. The punishment: criminal fines and imprisonment of up to 5 years."
The McCain campaign condemned the hacking as "a shocking invasion of the governor's privacy and a violation of law." The FBI and Secret Service are reportedly investigating.
The Yahoo account has since been deleted.
Palin's emails already were under question
Palin has made headlines for allegedly using her Yahoo account to conduct state business, a move that could run afoul of transparency laws. The e-mails published by the hackers display conversations Palin had with two administration officials, but they do not appear to discuss official state business.
The use of this account, however, made its way into an information request from Andree McLeod, former vice chair of the Alaska Republican party.
McLeod asked Palin's office on September 8 to release e-mails the governor sent from her state account – without any of the information redacted – as well as constituent e-mails to Palin, and e-mails that Frank Bailey, the director of Boards of Commission, and Ivy Frye, Palin's assistant, sent to Palin's Yahoo account.
In July, McLeod requested that Palin's office provide her with copies of all land-line and cell phone, text message, e-mail and leave request records that pertained to Bailey and Frye because McLeod suspected that Bailey and Frye were conducting campaign business on state time.
Palin's office handed over the documents, but information the governor's office considered to be sensitive was blacked out, while 1,100 additional messages were withheld. By law, only members of the state's executive branch were privy to that information, according to her office.
McLeod noticed, however, that 40 of the withheld e-mails were sent to Palin's husband Todd, who is not a member of the state's executive branch.
McLeod reasoned in her September 8 letter that she should have access to anything to which Todd Palin had access since they are both private citizens.
The Yahoo account is also fair game because "almost all of [Palin's] e-mails have been sent by or to [Palin] at email@example.com, [her] unprotected private citizen e-mail account outside the state server and the server's security system, rather than to or from [her] official office of the governor e-mail address," according to the letter, which was published by Mother Jones magazine.