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A law that was allegedly passed in response to corporate accounting scandals like Enron's and Worldcom's is now being used far outside of its original intentions:
A lot of Internet users delete their browser history and clear their cache and cookies.
It's just one of those things you do — some more often than others — if you own and use a computer.
"If you don't clear this information, it's there for someone to come along and retrieve — either by sitting down at your computer or remotely if you visit vicious websites or get a virus," said a Patrol Tech expert.
But the recent Boston Marathon bombing trial has brought to light a law, ratified in 2002, that could land you with a federal charge of obstructing justice for — wait for it — clearing your browser history.
Techdirt points out some of the serious problems with this chilling precedent:
In a hypothetical posed recently (containing a real-world example), finding yourself in possession of child pornography poses a serious dilemma. Possession is a crime, but so is destruction of evidence. Sarbanes-Oxley demands the preservation of evidence in "foreseeable" investigations, and child porn possession is one of those crimes no law enforcement agency ignores.
The article over at Dailykos covers the relevant section of the law, along with other details:
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.
The spirit of this law seems to be just another way to criminalize spoliation, but like too many laws in the post-9/11 world its written overly broad and rarely, if ever, used for its stated purpose. It scares me to see that simply performing maintenance on your computer, or worse being the victim of a CP-rickroll, will land you in prison no matter what you do. Is there anything we can do to stop this creeping totalitarianism, or is the police state already so entrenched that the only option left is to abandon ship?
Original Submission
(Score: 0) by Anonymous Coward on Thursday June 11 2015, @08:36PM
A simple solution: Full disk encryption.
(Score: 4, Insightful) by Ethanol-fueled on Thursday June 11 2015, @08:48PM
A simpler solution - configure your browser to not retain history in the first place.
(Score: 3, Touché) by The Archon V2.0 on Thursday June 11 2015, @08:56PM
> A simpler solution - configure your browser to not retain history in the first place.
And do the configuration in the presence of two witnesses and a notary public, so that a year from now if you're investigated for your cousin's murder spree you can prove you didn't make the change recently.
(Score: 0) by Anonymous Coward on Thursday June 11 2015, @09:19PM
A simpler simple solution - start using only a live CD and toss your hard drives into a volcano.
(Score: 3, Insightful) by DeathMonkey on Thursday June 11 2015, @09:25PM
A simpler solution - configure your browser to not retain history in the first place.
Which is completely legal, despite the clickbait article title. Deleting your history, monthly, would also be fine. As are email retention policies...
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
Its almost like adding "with a computer" doesn't change the laws preventing people from destroying evidence pertaining to an investigation.
(Score: 2) by MrGuy on Thursday June 11 2015, @09:35PM
The TechDirt article references this article, [simplejustice.us] which is fascinating and an actual example. It contains this snippet about an actual child pornography case (edited by me):
You're correct (and the court agrees) that intent is required. However, the court in this case held that the question of intent was a factual one for a jury. In other words, while you might be eventually found not guilty, you must be tried in a court in front of a jury, and the jury must find that you had no such intent.
In other words, there's no burden on the prosecution to prove (or, frankly, even suggest) intent prior to the trial in order for you to be indicted, held over (possibly on bail), and tried in criminal court for a felony.
Sure, it's nice that lack of intent is a defense, but that's WAY too late in the process for the question of intent to need to be so much as raised for anyone to feel comforted. Being arrested and tried for a federal felony crime is a VERY big deal.
(Score: 2) by MrGuy on Thursday June 11 2015, @09:40PM
Sorry, also to be clear - in the example I cited in the parent, the person who destroyed the files was NOT the one who downloaded them. He's the administrator of a local church's computer, where he found evidence that someone else had downloaded pornographic images. Wanted to make it clear that this was NOT someone deleting evidence of their OWN actions.
(Score: 2) by draconx on Friday June 12 2015, @01:33AM
Well of course.
IANAL, but the judge's explanation is proper. A motion to dismiss is explicitly not for making judgements about what actually happened; but only whether the alleged behaviour was actually against the law. It is a motion basically saying "The state said I did X, Y and Z, but none of X, Y or Z are actually illegal so there is no point in this trial." In other words, it asks the judge to make a decision about the law itself, considering all of the state's claims at face value.
(Score: -1, Troll) by Anonymous Coward on Friday June 12 2015, @02:51AM
If you do not like this, your only option is to have a revolution or leave the USA for a country that is an adversary or enemy of the USA. The USA is not your country, unless you are a white _woman_ or a rich person.
If that is not you, the USA is not for you.
(Score: 2) by MrGuy on Thursday June 11 2015, @09:25PM
IANAL, but as I read it, full disk encryption is absolutely no help here.
If the browser history is stored on the machine, and is legitimately subpoena'ed, you can't just decide not to turn it over. The fact that it's encrypted doesn't relieve you of that obligation - decrypt it and turn it over. "Sorry, I lost the hard drive password" leaves you in the same legal position as having deleted it - the statute reads "Anyone who....destroys, mutilates, conceals, covers up...." Concealment (behind encryption) is no more acceptable than destruction.
I'm sure you're getting at the fifth amendment argument that revealing your password can be construed as acting as a witness against yourself, and it may be the case that you can't be compelled to decrypt the hard drive for the police (if, for example, they're on a fishing expedition to see if you actually DO have child pornography on there).
Even if that argument holds (and it's still tenuous that it does), as I read it, they can STILL prosecute you here, because they don't have to prove you're guilty of the underlying crime to prosecute you for hindering the INVESTIGATION into whether you MIGHT have downloaded child pornography (by not turning over your browser history). The crime here is not in the illegal act, but impeding the ability to investigate the POSSIBILITY of an illegal act.
Come to think of it, this statute could be construed as making hard drive encryption a crime. "Whoever knowingly alters.. conceals, covers up... any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation... or in relation to or contemplation of any such matter or case..." It could be argued that encrypting a hard drive is altering (or concealing) the contents of a tangible object that MIGHT possibly be subject to an investigation at some point...
(Score: 0) by Anonymous Coward on Friday June 12 2015, @02:01AM
Even if that argument holds (and it's still tenuous that it does), as I read it, they can STILL prosecute you here, because they don't have to prove you're guilty of the underlying crime to prosecute you for hindering the INVESTIGATION into whether you MIGHT have downloaded child pornography (by not turning over your browser history). The crime here is not in the illegal act, but impeding the ability to investigate the POSSIBILITY of an illegal act.
Making good encryption essentially illegal is itself unconstitutional. Same for punishing someone for not turning over their keys.
All law enforcement can do is make an attempt to get the information they want. Anyone who pretends they have some god-given right to be successful is out of their minds.
(Score: 2) by tathra on Friday June 12 2015, @02:44AM
like that would stop them. there are quite a few unconstitutional laws on the books right now. the NSA and DEA dragnets for one, the criminalization of any drug for another (if nothing else, the 18th amendment set precedent that drug criminalization requires a constitutional amendment), and those are just the most obvious examples. it'd be nice if laws were required to pass a constitutionality test before they could come into effect, but the way it works is they pass unconstitutional laws and then ensure their constitutionality can never be questioned in the courts.