You Can Be Prosecuted for Clearing Your Browser History
Khairullozhori Matanov, a friend of the Boston bomber, is being sentenced under
a law whose purview is growing disturbingly wide.
By Juliana DeVries
June 07, 2015 "Information
Clearing House" - "The
Nation" - Khairullozhon
Matanov is a 24-year-old former cab driver from Quincy, Massachusetts. The night
of the Boston Marathon bombings, he ate dinner with Tamerlan and Dhzokhar
Tsarnaev at a kebob restaurant in Somerville. Four days later Matanov saw
photographs of his friends listed as suspects in the bombings on the CNN and FBI
websites. Later that day he went to the local police. He told them that he knew
the Tsarnaev brothers and that they’d had dinner together that week, but he lied
about whose idea it was to have dinner, lied about when exactly he had looked at
the Tsarnaevs’ photos on the Internet, lied about whether Tamerlan lived with
his wife and daughter, and lied about when he and Tamerlan had last prayed
together. Matanov likely lied to distance himself from the brothers or to cover
up his own jihadist sympathies—or maybe he was just confused.
Then Matanov went home and cleared his Internet browser
history.
Matanov continued to live in Quincy for over a year after the
bombings. During this time the FBI tracked him with a drone-like surveillance
plane that made loops around Quincy, disturbing residents. The feds finally
arrested and indicted him in May 2014. They never alleged that Matanov was
involved in the bombings or that he knew about them beforehand, but 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.
Matanov faced the possibility of decades in prison—twenty
years for the records-destruction charge alone.
Federal prosecutors charged Matanov for destroying records
under the Sarbanes-Oxley Act, a law enacted by Congress in the wake of the Enron
scandal. The law was, in part, intended to prohibit corporations under federal
investigation from shredding incriminating documents. But since Sarbanes-Oxley
was passed in 2002 federal prosecutors have applied the law to a wider range of
activities. A police officer in Colorado who falsified a report to cover up a
brutality case was convicted under the act, as was a woman in Illinois who
destroyed her boyfriend’s child pornography.
Prosecutors are able to apply the law broadly because they do
not have to show that the person deleting evidence knew there was an
investigation underway. In other words, a person could theoretically be charged
under Sarbanes-Oxley for deleting her dealer’s number from her phone even if she
were unaware that the feds were getting a search warrant to find her marijuana.
The application of the law to digital data has been particularly far-reaching
because this type of information is so easy to delete. Deleting digital data can
inadvertently occur in normal computer use, and often does.
In 2010 David Kernell, a University of Tennessee student, was
convicted under Sarbanes-Oxley after he deleted digital records that showed he
had obtained access to Sarah Palin’s Yahoo e-mail account. Using publicly
available information, Kernell answered security questions that allowed him to
reset Palin’s Yahoo password to “popcorn.” He downloaded information from
Palin’s account, including photographs, and posted the new password online. He
then deleted digital information that may have made it easier for federal
investigators to find him. Like Matanov, he cleared the cache on his Internet
browser. He also uninstalled Firefox, ran a disk defragmentation program to
reorganize and clean up his hard drive, and deleted a series of images that he
had downloaded from the account. For entering Palin’s e-mail, he was eventually
convicted of misdemeanor unlawfully obtaining information from a protected
computer and felony destruction of records under Sarbanes-Oxley. In January
2012, the US Court of Appeals for the Sixth Circuit found that Kernell’s
awareness of a potential investigation into his conduct was enough to uphold the
felony charge.
At the time Kernell took steps to clean his computer, he does
not appear to have known that there was any investigation into his conduct.
Regardless, the government felt that they were entitled to that data, and the
court agreed that Kernell was legally required to have preserved it.
Hanni Fakhoury, a senior staff attorney at the Electronic
Frontier Foundation, says the feds’ broad interpretation of Sarbanes-Oxley in
the digital age is part of a wider trend: federal agents’ feeling “entitled” to
digital data.
Fakhoury compares the broad application of Sarbanes-Oxley in
the digital realm to the federal government’s resistance to cellphone companies
that want to sell encrypted phones that would prevent law enforcement from being
able to access users’ data. When the new encrypted iPhone came out, FBI Director
James Comey told reporters that he didn’t understand why companies would “market
something expressly to allow people to place themselves beyond the law.”
“At its core,” Fakhoury says, “what the government is saying
is, ‘We have to create a mechanism that allows everybody’s [cellphone] data to
be open for inspection on the off-chance that one day in the future, for
whatever random circumstance, we need to see that data.’”
Similarly, Fakhoury says the government’s underlying theory in
cases like Kernell’s is, “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.”
As more and more data are stored online, the government wants
and believes it deserves access to that data for policing purposes. But Fakhoury
disagrees.
“The idea that you have to create a record of where you’ve
gone or open all your cupboards all the time and leave your front door unlocked
and available for law enforcement inspection at any time is not the country we
have established for ourselves more than 200 years ago.”
This past February the Supreme Court somewhat narrowed the
scope of Sarbanes-Oxley in the case of Yates v. United States. The feds
had charged a commercial fishing captain under the same record-destruction law
for throwing a batch of undersized fish overboard after a federal agent had
instructed him not to. The Court ruled that applying Sarbanes-Oxley to the
dumping of fish was too far afield from the law’s original corporate-crime
purpose. Another Tsarnaev associate, Azamat Tazhayakov, who helped throw
Tsarnaev’s backpack full of fireworks into a dumpster, may see his conviction
overturned because of the Yates decision.
But it appears that, at least for now, cases like Matanov’s
and Kernell’s are still fair game. The Supreme Court did not answer the pressing
question of how broadly federal prosecutors are allowed to use Sarbanes-Oxley in
the digital age. Can you be prosecuted for deleting a potentially incriminating
tweet? For uninstalling Firefox? For clearing your browser history? How much of
their digital data should citizens have to preserve in case law enforcement
wants to take a look?
In March, Matanov pleaded guilty to all four counts of
obstruction of justice. When he entered his plea, he told Judge William G. Young
that he maintains his innocence but fears a decades-long sentence were he to go
to trial. His plea agreement with prosecutors calls for a 30-month
sentence—still a harsh punishment for little more than deleting videos and
clearing his browser history. Matanov’s sentencing hearing is scheduled for
June.
“The whole case is mystery,” Matanov has said. The “FBI is
trying to destroy my life.”
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