Caution: deleting your browser history may be illegal
You may need to decide something important today: would you prefer that your spouse or family member know about that naughty website you visited yesterday or would you prefer to spend a couple of decades in federal prison?
A recent article in The Nation discloses the inappropriate use by federal prosecutors of a law meant for entirely different purposes. The Sarbanes-Oxley Act of 2002 was intended to provide authorities with tools to thwart criminal behavior by corporations. It was enacted after the Enron meltdown when we found out that executives (or their lackeys following orders) shredded every document they could think of which might incriminate them. The legislation's goal was to prevent companies from perpetrating massive fraud and then destroying the evidence of their conspiratorial criminality while investigations were under way.
The relevant section of Sarbanes-Oxley reads as follows:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Alas, in the new American police state any tool can become a hammer to smash the citizenry, as we continue below the swirly orange motif.
Khairullozhon Matanov was a friend of the Tsarnaev brothers, the Boston Marathon bombers. Federal authorities interviewed him about his involvement with them but never charged him for any activity related to the bombing nor have they alleged that he was even aware of their plans or sympathized with them. He did however commit a few minor lies during the interviews, none of which had any actual bearing on the case: for example, lying about the last time he had prayed together with Tamerlan Tsarnaev. On that basis,
... they charged him with four counts of obstruction of justice. There were three counts for making false statements based on the aforementioned lies and—remarkably—one count for destroying "any record, document or tangible object" with intent to obstruct a federal investigation. This last charge was for deleting videos on his computer that may have demonstrated his own terrorist sympathies and for clearing his browser history.
The last charge was based on the records section of Sarbanes-Oxley cited above. So, a law intended to prevent and punish corporate malfeasance is instead used as a hammer against a private citizen. Some people may feel that any possible application of a law is reasonable, especially in our unending war on terror. They might feel differently if that law is ever used against them.
You see, the most objectionable part of this is that it is being used to punish "pre-crimes." When Matanov deleted his browser history, he had not been charged with anything and was unaware that he was under investigation. His crime was not anticipating that federal agents might someday decide to investigate him and thus failing to preserve any self-incriminating potential evidence.
As Hanni Fakhoury of the Electronic Frontiers Foundation put it, the government is saying:
"Don't even think about deleting anything that may be harmful to you, because we may come after you at some point in the future for some unforeseen reason and we want to be able to have access to that data. And if we don't have access to that data, we're going to slap an obstruction charge that has as 20-year maximum on you."
The article in The Nation
shows that this is not an isolated misuse of Sarbanes-Oxley, discussing several other similar cases. Bankers and traders waltzed away with multi-million dollar bonuses after their criminally reckless shenanigans almost destroyed the global economy. Their companies paid insignificant fines for criminal money laundering and market manipulations. Yet none of them go to jail and none of them are prosecuted under Sarbanes-Oxley.
For Joe or Jane Citizen however, it is a different rule of law. The feds require us to do the cyber equivalent of keeping every birthday card sent to us, every grocery list we've written, every draft of a Daily Kos diary, and so on. We might be investigated years in the future for anything and we'd damn well better have every scrap of digital data that has ever passed through our computer's RAM or we might be sent up the river for obstructing the investigation.
Combined with federal snooping through our online communications and their efforts to break secure encryption in our data storage, they want us to completely surrender our privacy and personal autonomy of thought.
All in the name of freedom, of course.