Is The Indictment Of The Palin Email Hacker Legally Correct?

from the truthiness dept

Stephen Colbert famously coined the term "truthiness" on the very first episode of The Colbert Report. The word is used to explain a person who knows something is true in his or her "gut" rather than via any facts (and, of course, continues to believe that it's true even if the facts contradict the claim). I'm beginning to wonder if there needs to be a similar world for the legal world, where you believe something must be illegal, in your gut, even if the law itself doesn't appear to cover it. That's what we see with folks who want to string up Lori Drew, the woman whose online conversations with a former friend of her daughter may have resulted in that girl's suicide, despite little evidence that Drew's actions broke any actual law. Yet, because of the quasi-lynch mob mentality of folks who felt in their gut that it must be illegal, prosecutors eventually twisted a law to charge her.

Now it's looking like the recent indictment of a teenager for breaking into Vice Presidential candidate Sarah Palin's email may be facing a similar situation. We had already noted that Justice Department's own definition of the law might make it difficult to prosecute the hacker. However, now a friend sent over an interesting analysis of the indictment itself, by Orrin Kerr, which suggests the entire indictment is legally flawed. Specifically, the statute used, claims that the intrusion is only a felony if used to further a criminal activity.

As Kerr notes, it's not clear what criminal activity was "furthered" by hacking into the email -- unless you read the whole thing recursively, such that the act itself is illegal, and thus doing it is furthering that illegal act. But, obviously, that's legally problematic. So once again, it looks like a situation where plenty of people believe that the act was illegal (very reasonably so, I might argue), but the feds are having trouble finding a law that actually makes it illegal. So, do we have any Colbertian suggestions for what this should be called? Illegalism? Illeginess? Illegfulness?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Jesse, Oct 15th, 2008 @ 6:34pm

    It will be hard to beat truthiness. No matter what you suggest, in my gut, I know that truthiness is the best word for this situation.

     

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  2.  
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    Seth Carroll, Oct 15th, 2008 @ 6:37pm

    Illegalness?

    that would be my guess.

    Also, that whole situation is bullshit.

     

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  3.  
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    d0n0vAn, Oct 15th, 2008 @ 6:48pm

    The Wire Fraud statute--Title 18, United States Code

    http://www.usdoj.gov/criminal/cybercrime/wiretap2510_2522.htm

    Conspiracy to intercept and the interception of electronic communication(s) that did not belong to him or his conspirators. Conspiracy to disclose and the disclosure of aforementioned electronic communication(s). Conspiracy to conceal and attempt to conceal his actions. Conspiracy to obstruct and attempting to obstruct an investigation.

    Hell, seems like this would be a pleasure to argue.

     

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  4.  
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    Jesse, Oct 15th, 2008 @ 6:52pm

    If the NSA can do it...why can't a citizen?

     

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  5.  
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    Anonymous Coward, Oct 15th, 2008 @ 7:07pm

    Really? This is beyond partisanship. Get a life and start selling some t-shirts.

     

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  6.  
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    mslade, Oct 15th, 2008 @ 7:22pm

    Couldn't he have just been indicted on the grounds...

    ..of being a chode of a script kiddy stupid enough to break into a high profile email account in the online equivalent to a crowded mall in mid-daylight, followed by a lengthy confession to a public and largely read forum?

    Kid is a chode. That should be indictable.

     

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  7.  
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    Dave Records, Oct 15th, 2008 @ 7:44pm

    Colbertian Suggestion

    How about illegability?

     

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  8.  
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    Phil, Oct 15th, 2008 @ 7:45pm

    Re: The Wire Fraud statute--Title 18, United States Code

    Those are conspiracy charges. He already committed all of those, so i'm pretty sure those wouldn't apply.

     

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  9.  
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    Anonymous Coward, Oct 15th, 2008 @ 7:52pm

    if the glove doesn't fit....

    You must acquit!

     

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  10.  
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    Anonymous Coward, Oct 15th, 2008 @ 8:54pm

    Well considering the fact that this isn't really hacking since all the person did was use wiki and a few other sites to guess the recovery question which wasn't that hard to guess in the first place.

     

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  11.  
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    Erv Server, Oct 15th, 2008 @ 8:59pm

    Illegal

    The Indictment of someone and someone being found innocent are two different things.

     

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  12.  
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    Anonymous Coward, Oct 15th, 2008 @ 9:48pm

    Duh!

    So you hack an account, change the password, and then post it for all your friends to use. How does that not further illegal activity? Just like cracking software and distributing it for others to then download.

    Of course, I am confused. Had it been a Republican hacking a Democrat, this "story" wouldn't be a story, instead the story would be about how evil all Republicans are.

    Seems like there is little "open-mindedness" in our society today, at least when it comes to being open minded to people with conservative beliefs.

     

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  13.  
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    Mike (profile), Oct 15th, 2008 @ 9:52pm

    Re:

    This is beyond partisanship.

    Huh?!? This has nothing to do with partisanship at all. I'm only interested in the specific legal question, and that would apply to any candidate this happened to.

     

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  14.  
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    Anonymous Coward, Oct 15th, 2008 @ 10:29pm

    Re: Duh!

    Perhaps if Conservatives weren't so strung up on trying to force their own beliefs down everyone's throats, that wouldn't be the case. Still, and all, neither your comment nor mine has any bearing on the ACTUAL point of the story. Keep your politics in your pants, please. That's where I'll keep mine. Before you try to lambast me as an Evil Dem, I'm neither Dem or Rep, I vote the issues.

    Back on track, one would think there would be a law to cover this. Invasion of privacy? Unauthorized access? /something/! Then again, the legal community still hasn't caught up, and likely will still be playing catch-up five years from now.

     

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  15.  
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    Dan, Oct 15th, 2008 @ 11:10pm

    Re: The Wire Fraud statute--Title 18, United States Code

    If that is the criteria then we should be able to empty the White house tomorrow.

     

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  16.  
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    Crysm, Oct 15th, 2008 @ 11:22pm

    Re: Re: Duh!

    To my knowledge (and I haven't looked this up in a long time, if ever), there IS a law to cover this: any time you circumvent security (you can debate what constitutes security, but in general, a password) to access a computer account you are not supposed to have access to, it is a crime. It's just not necessarily a /felony/.

    This guy actually lives a few blocks from me, and from the talk around campus and in the campus paper, he really doesn't deserver this. I'd say that even if I didn't have the gossip mill to fall back on. While a monumentally stupid thing to do, considering the politics involved, it was essentially harmless. I would be hard-pressed to find good reason to have him charged with a /felony/ for it. That kind of thing sticks with you for life.


    And seriously, who uses Yahoo for anything they want secure? Their accounts have been notoriously insecure for as long as I can remember.

     

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  17.  
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    SteveD, Oct 16th, 2008 @ 1:13am

    Intent?

    "Further a criminal activity" is a hard one, because although the kid didn't actually find anything he thought would be damaging, he admitted that was his intent.

    Does that matter? Like attempted murder is a crime, is attempted defamation a crime? I guess not.

    Its a bit disturbing if it turns out that breaking into someone's email account turns out not to be illegal. Isn't reading someones physical mail a crime in the US, and why shouldn't the same rule apply?

     

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  18.  
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    Anonymous Coward, Oct 16th, 2008 @ 2:38am

    "I'm beginning to wonder if there needs to be a similar world for the legal world, where you believe something must be illegal, in your gut, even if the law itself doesn't appear to cover it."

    In the UK that word is "asbo".

     

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  19.  
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    AJ, Oct 16th, 2008 @ 4:52am

    Wanna Bet

    If the tables were turned and it was a Republican legislator's son/daughter who broke into Biden's mailbox, someone would be crucified?

     

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  20.  
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    Anonymous Coward, Oct 16th, 2008 @ 5:38am

    Re: Re:

    No, you used a partisanship website as your source.

     

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  21.  
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    Anonymous Coward, Oct 16th, 2008 @ 5:51am

    Re: Re:

    Mike,

    Would you honestly care if this was not Sarah Palin's email account?

     

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  22.  
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    Cabalamat, Oct 16th, 2008 @ 6:36am

    If Palin ever became president, you can bet she'd be hacking into the email of anyone she had a grudge against, such as her sister's ex-husband.

     

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  23.  
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    Overcast, Oct 16th, 2008 @ 6:36am

    Hell no this isn't right. You think someone would get in any trouble at all if they hacked my or your Yahoo Email?

    Get serious.

    She's just another of the same - like McCain, Biden, Obama - *ALL* a bunch of silver spoon, privileged rich jerks who think their crap don't stink. We need *real* people running the country, not this snotty bunch of spoiled, elite brats.

    OMGZ!!! MY Yahoo Mail was hacx0red!! Someone needs to PAY!!

     

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  24.  
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    Anonymous Coward, Oct 16th, 2008 @ 6:37am

    Re: Re: Re:(would anyone care if it wasnt palin's email)

    There would be much less, or almost noise if this happened to anyone else and their email. I know for certain that the Justice Department didn't Spring to defend me when one of my own email addresses was compromised.

    This is a bald-faced showing of law being used Only to protect important people, even to the point that officials are willing to bend and stretch the laws until they feel satisfied.

    "Well, technically he was just walking past the governor's palace, but we figure we can charge him for conspiracy to break and enter because he glanced over"

     

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  25.  
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    Overcast, Oct 16th, 2008 @ 6:38am

    Oh and - partisan doesn't matter. Unless it's *us* vs. these elites.

    Go hack Biden's Yahoo email - you'll go down too.

    Hack mine and nothing will happen. Of course, well - nor would I actually care, lol.

     

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  26.  
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    Overcast, Oct 16th, 2008 @ 6:42am

    One last comment.

    Is someone really fit to run a country that's spending time - I mean wasting time worrying about a Moth#$ $%cking Yahoo account getting hacked?

    WTF?

    Seriously.

    Ok... umm, go get a new one.

    And lastly, if you have sensitive data in a Yahoo email account, you are an idiot indeed.

     

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  27.  
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    nasch, Oct 16th, 2008 @ 9:14am

    Re: Duh!

    And I thought the liberals are supposed to be the ones with the victim mentality...

     

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  28.  
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    Dave, Oct 16th, 2008 @ 9:19am

    Re: Re: Re:

    So unless you agree with the source of the legal argument, it's partisanship?

    Would it make you happy if Mike XXX'd out the candidate's name? Would that allow you to focus on the actual issue being discussed?

     

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  29.  
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    GeneralEmergency (profile), Oct 16th, 2008 @ 11:21am

    Ummm.... Crimeiness

    Most definitions of Crime include something like:

    "A serious offense, especially one in violation of morality."

    Note the absence of "violation of law".

    Sample usage:

    "The District Attorney bent laws left and right seeking justice for Lori Drew's crimeiness."

     

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  30.  
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    Cixelsid, Oct 16th, 2008 @ 1:06pm

    What I'd like to know is

    If any of us Joe-sixpacks got their yahoo account hacked by some liberal, will we get government funded investigations and legal teams?

     

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  31.  
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    Clueby4, Oct 16th, 2008 @ 3:30pm

    Discretionary Enforcement

    I too find it quite unjust that a normal victims of similar "crimes" are not granted the same protections and/or considerations.

    I don't see a FBI task force being created to handle all the hacked WoW accounts. Perhaps if a corrupt politician had their WoW account hacked?

     

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  32.  
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    Mike (profile), Oct 16th, 2008 @ 4:14pm

    Re: Re: Re:

    No, you used a partisanship website as your source.

    My source was Volokh, which is a site that discusses economics. I never thought of it as a "partisan" site.

     

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  33.  
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    Mike (profile), Oct 16th, 2008 @ 4:16pm

    Re: Re: Re:

    Would you honestly care if this was not Sarah Palin's email account?

    Yup. A case about whether or not it's illegal to hack into email, is quite interesting.

     

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  34.  
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    Rob, Oct 16th, 2008 @ 10:48pm

    I like Legalocity. Or Legalicious. Legaliciousness?

     

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  35.  
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    Jim, Oct 17th, 2008 @ 8:18pm

    If they had a properly worded law then they would have no loophole for there own illegal snooping.

     

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  36.  
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    BTR1701, Oct 17th, 2008 @ 10:58pm

    Re: The Wire Fraud statute--Title 18, United States Code

    > Conspiracy to intercept...

    You actually have to conspire with someone else in order for a conspiracy charge to apply. The actual legal definition of conspiracy requires an agreement between two or more people to commit a crime.

    This kid did this all on his own, so all those conspiracy charges you listed don't apply.

     

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  37.  
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    gish, Oct 22nd, 2008 @ 1:56am

    a chess game

    This situation is like a chess game. Say some one good at logic games gets into palin's email account. Say he really can't believe he is there..too simple..every foreign government must have been there before...and more than that, finds eamils that would lead to her indictment in alaska for sunshine law violations..what does he / she do ? Perhaps the security prompts were changed to allow him in ? He / she gets scared, and the next day publicly confesses, knowing that he /she would be traced...by the good guys..the feds..not the bad guys..who ever they might be...don't kill the messenger...

     

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  38.  
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    Martin (profile), Oct 23rd, 2008 @ 2:24pm

    Re: The Wire Fraud statute--Title 18, United States Code

    But if the emails were already in Palin's account, he wouldn't be intercepting them, would he? Wouldn't this be more of a 'stored communications' thing, which I thought was totally different?

     

    reply to this | link to this | view in thread ]


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