Academic

Can we expect the Sarah Palin Email Privacy Act of 2009?

By Ann Bartow

Law prof Paul Ohm says so here, writing:

As has been widely reported, Sarah Palin’s Yahoo e-mail account has been breached, and its contents have been posted to wikileaks. Gawker.com is posting excerpts from the e-mail messages including photographs.

As usual, Orin Kerr (with some assists from his merry band of commenters) is doing a great job fleshing out the legal analysis. A crime has been committed, there can be no doubt, and Yahoo!’s lawyers will probably be kept up late tonight receiving and responding to incoming subpoenas and court orders.

I wanted to come at this story from a slightly different angle: I predict that some day we will look back on this breach as a watershed event in the history of statutory Internet privacy. As Dan and many others have noted in their articles, Congress often enacts privacy protecting legislation only in the wake of salient, sensationalized, harmful privacy breaches. Thus, Judge Bork’s video rental records begat the Video Privacy Protection Act and the murder of actress Rebecca Schaeffer by a stalker with DMV records led, eventually, to the Drivers’ Privacy Protection Act.

Compared to these examples, the breach of Sarah Palin’s e-mail account is on a higher plane of salience and sensationalization. The most scrutinized woman in the country has dozens of her private correspondences pasted all over the blogs. Even if nothing is found in these messages which damages her or the campaign, and whether or not the perpetrators are caught, many will call for tougher privacy laws, and Congress and state legislatures will feel great pressure to deliver.

InfoAdvocate notes the current difficulty that nonfamous victims of e-mail hacking have getting law enforcement to care:

… In a short career representing domestic violence survivors, I?ve represented a client in a protection order hearing whose account was broken into in this manner. The client and opposing party used to date, and the opposing party knew my client?s high school mascot ? the question the webmail service asked. Thus he accessed her webmail account easily. I prepared for the court a brief memorandum on how this was a crime, and thus should entitle my client to a protection order ? in DC you need to show by a preponderance of evidence that an intrafamily offense occured.

The Feds aren?t involved, and no-one is going to jail. The other party did consent to a protection order, however, so we never had a hearing. He has to stay away from her, and not contact her. I added to the order we negotiated that he is to not break into her email accounts again. Maybe if he does it again, the court would order him jailed ? courts do not like their orders violated. But I do not think the feds would get involved. And it may take quite a bit to convince this court that a violation occurred. The court is familiar with other allegations ? threats, physical abuse, the presence of children ? and not so much with Internet abuse.

So what do I hope comes out of this? What?s my hope for the as of now fictional ?Sarah Palin Email Privacy Act of 2009?? I hope this leads to webmail providers beefing up their security and cooperation with victims when breaches occur. I hope this leads to more awareness of this crime. I hope this leads to more enforcement of this crime. Not necessarily more Feds putting more people in jail, but the use of protection orders and other intervention as happens in many other cases of abuse. Not all of us get headline treatment when our email is broken into. But we should all be entitled to justice and protection.

Too many feminist bloggers have suffered various forms of internet abuse that most law enforcement officials simply refuse to address at all. If anything good can come out of this episode, I hope that will change.

–Ann Bartow

Full post as published by Feminist Law Professors on September 18, 2008 (boomark / email).