Will The DOJ's Interpretation Of Email Privacy Make It Difficult To Prosecute Palin Email Hacker?

from the we-said-what-now? dept

Fri, Sep 19th 2008 11:13am — Mike Masnick

While plenty of folks are talking about the cracking of Sarah Palin's personal email account, the EFF is noting that the Justice Department's own interpretation of email privacy laws may actually make it difficult to prosecute the hacker under the most obvious statute, the Stored Communications Act. You see, since the DOJ would prefer that your email not be considered private, it has interpreted emails that you've opened, but not deleted, as not being subject to the SCA. That's thanks to a somewhat contorted reading of the law that suggests that an opened email is no longer considered either in temporary or intermediate storage -- nor is it considered saved for backup purposes. Those happen to be the two requirements under the law. Thus, if the hacker accessed emails that Palin had already read, the DOJ may have trouble using the SCA, since its own statements (though, thankfully, not the courts) seem to believe that hacking in and reading already read emails is not covered by the law.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: email, hacking, justice department, sarah palin, stored communications

37 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 19 Sep 2008 @ 11:24am

1. Have Cake
2. Want to Eat It
3. No Cake For You!
[ link to this | view in thread ]
Isaac K (profile), 19 Sep 2008 @ 11:25am

Re:
4. No soup either!
[ link to this | view in thread ]
pilgrim, 19 Sep 2008 @ 11:49am

The premise of this story is rather silly. Like ir or not, for better or worse, "DOJ's interpretation" of the SCA (that copies of messages that are left on a mail server, after the messages themselves have already been retrieved and read by the recipient, are not in "electronic storage" for SCA purposes, although a related law requires the govt to jump through a different set of procedural hoops if they want to get them from an ISP has been the law since 1986). Most folks reading Techdirt, even if they aren't lawyers, can appreciate the distinction between messages en route to their destination, and messages that have been opened and left on a server. The law treats these two categories *slightly* differently, treating the latter more like the files one stores at box.net or xdrive, or in a private Flickr gallery. They get legal protection, but not the exact same as messages that are in transit (or temporarily stored on their way to the recipient).

And yes, it's still against the law to break into a webmail account and swipe messages, even if they've been read. The CFAA, 18 USC 1030, among other laws, makes it a crime.
[ link to this | view in thread ]
James, 19 Sep 2008 @ 12:00pm

Crazy
The better question than whether this person can, or should, be prosecuted for this is WHY WHY WHY is a govt official doing official business using NON-official govt email systems? Maybe she's as crooked as the fools we currently have in the whitehouse (or at the very least as ignorant).
[ link to this | view in thread ]
Agonizing Fury, 19 Sep 2008 @ 12:10pm

Re: Crazy
Or maybe it's that the government systems are not as easy to use, or have the same functionality as the NON-official e-mail systems. I know that when I was in the military, AKO (Army Knowledge Online) e-mail accounts were years behind gmail. I still used AKO for official uses anyways, but always wanted to use gmail instead.
[ link to this | view in thread ]
hegemon13, 19 Sep 2008 @ 12:10pm

Re: Crazy
I'm not a big supporter of either campaign right now, but I would suggest you do a little research and use some common sense. As it turns out, they could find NOTHING incriminating in her Yahoo email. So, the argument became "ooh, she must be hiding something or she wouldn't have a Yahoo address." I am not saying this proves everything is legit. But, it is a far cry from proving any wrongdoing, and it is beginning to sound a bit witch-hunt-y, where not finding evidence just "proves she's hiding it."

There are certainly issues to be discussed about Palin. Her decision to maintain a personal email address is not one of them. If, and only if, someone can provide evidence, rather than baseless accusations, to say that she is using the address for government business and covering stuff up, I will be happy to listen. When it is just mudslinging, I don't see the point.

James: Do you have, or have you seen posted, evidence that Palin used this account for government business? I have tried to find an article that actually gets down to specifics, but all I can seem to find is, "she has a Yahoo account, so she must be doing something bad." I have a Yahoo account, too. It's where I send my junkmail.
[ link to this | view in thread ]
erv server, 19 Sep 2008 @ 12:13pm

Palin wasn't doing govt business on her Yahoo account, the libs are trying to smear Palin on this and she was the one hacked. Also her family's email accounts were hacked
[ link to this | view in thread ]
EO, 19 Sep 2008 @ 12:19pm

Re: Crazy
That isn't the better question, just the more politically charged question. If she didn't break a law (and I've no clue what Alaska law says on this) then she may be guilty of stupidity at worst. That's a lesser offense that the crime of theft that occurred when "Anonymous" hacked her account. But in a political season, one supposes that observations such as yours are to be expected.
[ link to this | view in thread ]
NeoConBushSupporter, 19 Sep 2008 @ 12:28pm

IM OUTRAGED
OUTRAGED I tells ya . . . Nancy Pelosi and her AlQuida operatives invade the sanctity of Americas "ice princess" and where is the ACLU, where is Techdirt, what happened to all the privacy mobo-jumbo! Typical liberal hypocrisy, your all for privacy when it comes to your “stash” at the airport, but when it comes to defending unpopular, heroic, working mothers, well then its everyone for themselves huh?

VOTE McCain 2008 - Because hes really running outta time.
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 12:38pm

Hacked? Nah.
Gonna have to take issue with the claim that her email was "hacked".

She's using a yahoo email account and has virtually all of her private information around the internets, and her secret question ("where did you meet your husband" or something, if I recall) was ridiculously easy to guess.

Someone used some basic guess work to get into the vice presidential candidate's private email account. *Extremely* basic. That should be the issue here. Not that she was "hacked" or "hurt" or anything.
[ link to this | view in thread ]
Matt, 19 Sep 2008 @ 12:42pm

I work in State Government IT
Agonizing Fury, I dont know how long ago you were involved with the military or government. Right now in Nebraska we use either Lotus Notes or Outlook 2003/2007. Both are very simple to use and have more than enough functionality to surpass Gmail. And before you say that I just hate google, I have a personal gmail account. The reason state employees arent allowed to use Gmail, Hotmail or Yahoo! is because of the security issues. This "hacker" (talk about a joke) just went and reset her password by answering a very easy "security" question.

This is why you dont you these services for government business.
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 12:44pm

Re: Crazy
With the RNC's history of losing e-mails, I'd probably use a 3rd party system too. :)
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 12:55pm

Re: Hacked? Nah.
If you walk into my yard with a fence around it and the gate only has a twisty-tie for a lock, does that justify your trespassing?
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 1:12pm

Re: Crazy
IF indeed she were using the pulic email for government business it would probably be a side-step to the freedom of information act. All government e-mails, documents, and other federal business related materials are subject to public viewing under the act, by using a personal account any alleged malicious dealings would be protected under different laws.
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 1:13pm

Re: Re: Hacked? Nah.
I never said "justified", at all.

What I'm saying is, if you leave your yard unfenced and I stroll on to it, you can charge me with trespassing, but you can't claim I'm committing armed robbery or that I'm breaking and entering.

The email account wasn't "hacked". Someone reset the password because the data required to do that is all over the net, and she picked a stupidly easy security question.

This kind of thing happens constantly on the interwebs, to anyone who has annoyed certain groups of individuals. It never makes the news until Palin gets hit because she's stupid, and suddenly it's everywhere and the internet is full of "dangerous hackers".

If anything, her account was "cracked", but even that is somewhat pushing it. In any case, we're not talking about someone sitting behind 4 monitors glowing bright green as he fights his way through firewalls, routers and guys throwing glowing frisbees.
[ link to this | view in thread ]
Overcast, 19 Sep 2008 @ 1:19pm

Not like they would be concerned about anyone else's e-mail, but I guess she's 'special'.

It wouldn't surprise me (since they seemed to just go out of their way to state 'nothing incriminating was found') if it's just a big PR stunt all around.
[ link to this | view in thread ]
New Coward, 19 Sep 2008 @ 1:35pm

Re: Re: Hacked? Nah.
No, but it doesn't really justify calling it "breaking in". I think he meant that it wasn't really *hacking*, as such, because it didn't use any 1337h4x skills.
[ link to this | view in thread ]
Palin-ologist, 19 Sep 2008 @ 1:50pm

misguided hackers
Who cares about her email? When is somebody going to hack into her folder of "private photos" she and her hubby took? Preferably ones she took 20 or so years ago.
[ link to this | view in thread ]
TheOldFart, 19 Sep 2008 @ 2:49pm

Re: Re: Crazy
One would hope for better leadership out of a governor.

If the govt. e-mail system wasn't right, then maybe (just maaaaybeeeee) as leader of the entire state the governor do something bizarre and actually *lead*.

Whiners and wannabes cry about the systems, rules and processes that they control be broken. Leaders initiate the changes to fix what's broken.

Also unlike the military systems, the *people* have elected the bimbo... er... "fine vice presidential pick" to represent them and the *people* have passed laws saying "we want to know what you're doing with our money and how you are behaving".

She's just another sleazy politician circumventing the law whenever it's convenient for her to do so.

If ordinary people so much as don't pay parking tickets, their cars get towed away and impounded. Politicians get away with blatantly violating any and every law they choose and they face no consequences. The *people* wanted the open government law, the VP-to-be is giving the *people* the finger.

Welcome to America where the powerful have privileges the people will never experience and the idiots not only vote for them but also give them a free pass to violate any laws they feel like.

Let's just pray to the FSM that she doesn't have some lackey go down on her while she's sitting at the VP desk because *then* we'd have to hold to the absolute letter of the law on "moral grounds".
[ link to this | view in thread ]
nasch, 19 Sep 2008 @ 3:54pm

Re: Re: Re: Hacked? Nah.
I think it would be helpful if you defined these terms.

Hacking
Cracking

It seems people have different definitions for these words, which makes a reasonable conversation using them pretty much impossible.
[ link to this | view in thread ]
Anonymous Coward, 19 Sep 2008 @ 4:24pm

Re: IM OUTRAGED
That's rather funny.
[ link to this | view in thread ]
The Onion, 19 Sep 2008 @ 7:53pm

Obama emails leaked
http://www.theonion.com/content/files/images/Obama-Deletes-Inbox_redo.jpg
[ link to this | view in thread ]
Anonymous Coward, 20 Sep 2008 @ 8:17am

Re: Re: Re: Crazy
Yep, I second that.

There is a huge double standard here. I'm sure that he will be made an example. Meanwhile Mr Foley walks .....
[ link to this | view in thread ]
Dick Buttons, 20 Sep 2008 @ 9:05pm

The issue is that yes, she WAS using a Yahoo account for Gov't business. In fact she'd discussed avoiding scrutiny by doing such a thing. Whether or not incriminating emails were discovered (most had probably long ago been deleted), it's clear that she DELIBERATELY tried and end-run around the FOIA laws. Since she was using a "personal" account for mail which should have come under public scrutiny, they she forfeits ALL expectations of privacy on said account. A good lawyer will get this "hacker" (and I use the term extremely loosely) nothing more than a slap on the wrist, and Mrs. Palin should refrain from trying to subvert the laws of the land.
[ link to this | view in thread ]
Anonymous Coward, 20 Sep 2008 @ 9:17pm

Re: IM OUTRAGED
Isn't the article talking about how her privacy should be defended but won't be, due to incompetence on the behalf of the DOJ? I'm sorry, maybe your blinders aren't allowing you to read anything but titles.

P.S. Take your religiofascism and cram it up your ass... or... well... go ahead cram it up Obama supporters asses... but could you do us all a favor and leave the politically independent sites like TechDirt THE FUCK ALONE. Thanks, I'm getting bored by morons flaming around their sexual desires and telling us all how much they enjoy the ass pounding the bureaucrats like to dish out so much. Keep your preferences to yourself. You can suck McCain on your own time.
[ link to this | view in thread ]
Another Anonymous Coward :), 20 Sep 2008 @ 10:30pm

Re: Re: Re: Re: Hacked? Nah.
In the context of this article, the popular (and incorrect) meaning of "hacker" is someone who circumvents computer security illegally and/or has malicious intent.

In the computing community, a hacker is someone who is very good at doing things that are unusual or elegant; the term does not imply good ("white hat") or bad ("black hat") in this context, nor does it specifically refer to circumventing anything. This meaning is fading in the computing community, due to public (journalistic) misuse of the term. The proper usage for this article would be "black hat hacker".

A better term in the context of this article would be "cracker". A "cracker" is someone who circumvents computer security illegally. There is no need for a cracker to be good at it; the current topic is a good example.
[ link to this | view in thread ]
Anonymous Coward, 20 Sep 2008 @ 10:33pm

What's the big deal anyway?
People are getting hacked every day and noone gives a rip about it.
Why should someone be prosecuted for something thousands of other people do on a daily basis?
Just because she is a governor and runs for vice chief of morons?
Too bad God didn't account for anti-hacking measures or harder to guess passwords during his infallible creationism.
Meh...
[ link to this | view in thread ]
Dawger, 20 Sep 2008 @ 11:46pm

Re: Crazy
The simple answer is that she was not. Now I expect that you will withdraw your accusation.
[ link to this | view in thread ]
Rob, 21 Sep 2008 @ 3:42am

This kid is done for
He went for someone high on the totem pole. He's going down. We might not hear about it when it goes down though. If it was one of us, that kid would just go through his normal day of smokin pot and playing video games all day without a care in the world.
[ link to this | view in thread ]
Rob, 21 Sep 2008 @ 4:01am

Palin was not a smart one though...
Obviously using a Yahoo account as your main form of e-communication when you're at a high level of government is stupid to say the least, but when you govern less than 1/3 of the population of my county (Queens, NYC), it's amazing to know you have email at all. My mayor "governs" 12x the population of that frozen tundra of blue collar workers. Those people have a great role in our society, but not to run it. Would you want Joe on the 3rd floor beam of a building being constructed to be at a high level of government? Ok, I probably would too, if there were a couple hundred like him ready to take over - quick decision making like in that Sprint commercial of firemen. Unfortunately, this isn't a cool commercial, this is reality. As far as most of us know, the VP is the tie-breaker vote and the heartbeat away. The people on either coast can agree with me on this one. The midwest can relate a little bit to her. How hard can it be to pass any law with hardly any reps to vote it down? Any ideas she has will face the challenge of 538 mostly old white guys. Some hot dame from Alaska isn't going to change Washington for the better. I can truthfully say I have no clue which way I'm going this election.
[ link to this | view in thread ]
Anonymous Coward, 21 Sep 2008 @ 6:26am

Re: Crazy
The published reason for this type of email useage, was to get around the Freedom of Information acts which would have covered all emails in the States computer systems, but apparently not those stored at yahoo.
[ link to this | view in thread ]
Another Anonymous Coward :), 21 Sep 2008 @ 7:17am

Why use personal email when have gov't email?
A number of people have wondered why Mrs Palin used a personal email service for government business. While doing so is not right, it is understandable in context. Depending upon how her email system works:

* She may not be able to use it from home.

* She may have given up on trying to memorize a new password every 60-120 days (depending upon policies), much less memorize a small pile of passwords, which is more likely. How many people have perfect memory?

* As someone else has suggested, her work email may be lacking in some feature that she feels that she needs.

I seem to recall that she lives an hour away from her office. If she is conscientious about her job, she will want to keep on top of things, and get some work done, without being stuck at work long after normal hours.

Even being at the top of the totem pole in her state doesn't mean that she can have things changed to improve convenience without significantly sacrificing security; there may be decades of precedent and law that cannot be changed readily; or there may be Federal rules which apply and which are not easily worked around; or she may have asked her IT people for something that they are unfamiliar with, and therefore they would (rightly) refuse to do until they have a chance to become familiar with it... and if they are like most IT departments, they're just plain too busy to have time; or the new software and implementation may cost more than she can justify allocating.
[ link to this | view in thread ]
Anonymous Coward, 21 Sep 2008 @ 7:45am

Re: Why use personal email when have gov't email?
* She may have given up on trying to memorize a new password every 60-120 days (depending upon policies), much less memorize a small pile of passwords, which is more likely. How many people have perfect memory?

Is this really a valid excuse ?
If you are uncapable or unwilling to deal with passwords, then maybe you shouldn't consider running for the position.
[ link to this | view in thread ]
Another Anonymous Coward :), 21 Sep 2008 @ 10:02pm

Re: Re: Why use personal email when have gov't email?
I know some people who have to memorize up to 9 or 10 passwords. No password manager, no writing it down on paper. And, of course, not all are used daily, so they don't get much reinforcement. And don't forget that the passwords change every 2-6 months, depending on policies, and that they must contain at least one or two digits, one or two symbols, and one or two letters, depending on policy. You tell me.
[ link to this | view in thread ]
Anonymous Coward, 22 Sep 2008 @ 6:49am

Re: Why use personal email when have gov't email?
There are other private email services that could be used other than Yahoo! Every ISP in the country offers web-based email. What would she do if someone at Yahoo! read her email, which they are legally allowed to do? It really scares me that on the McCain/Palin ticket you have an old coot that refuses to use a computer and a person that obivously lacks any knowledge of computer security, and we are suppose to trust them with launching codes?
[ link to this | view in thread ]
Rob, 22 Sep 2008 @ 4:39pm

Re: Re: Why use personal email when have gov't email?
GREAT POINT!!!
[ link to this | view in thread ]
Another Anonymous Coward :), 23 Sep 2008 @ 9:50pm

Re: Why use personal email when have gov't email?
Agreed.

Familiarity with computers is pretty much a necessity nowadays. I can tell you from experience that it's extremely aggravating trying to explain computer things to someone who doesn't know anything about it, or worse, "knows" the wrong things and assumes that you're feeding them a load of BS when you try to tell them how it really works. Modern society is computer-dependent.
[ link to this | view in thread ]