Gov. Palin's Yahoo Email Account Hacked
Last night, someone apparently obtained access to the Yahoo! email account of Governor Sarah Palin, the Republican candidate for Vice President. Screenshots of Gov. Palin's email account are now widely available on the sites such as Wikileaks and Gawker.
It is unclear how the account was compromised. Possibilities include guessing the Governor's password, getting a new password by using "basic verification information, such as your birthday and the ZIP or postal code you provided when you registered," or even using a previously unknown flaw in Yahoo! Mail's security.
The McCain-Palin campaign responded to the news with a statement that "This is a shocking invasion of the governor's privacy and a violation of law. The matter has been turned over to the appropriate authorities and we hope that anyone in possession of these e-mails will destroy them." The FBI and the Secret Service told Wired's Threat Level that the agencies are investigating.
While we don't yet have all the facts, based on the public information a court would likely agree that the access was illegal under the Stored Communications Act or SCA. The SCA prohibits access "without authorization [to] a facility through which an electronic communication service is provided" (i.e. Yahoo! Mail), where the perpetrator "obtains ... access to a wire or electronic communication [i.e. email] while it is in electronic storage in such system." The goal of the SCA is to allow people to use third party email services like Yahoo! without compromising their privacy, and the federal privacy law rightly provides strong penalties for illegal access. The law provides the same privacy protection of personal email messages to everyone, from political figures like Gov. Palin to ordinary folks like you and me.
However, it is unlikely that a court would require anyone in possession of these email messages to destroy them. The First Amendment protects the right of independent third parties to disseminate information, even where those third parties are aware that the emails were originally unlawfully obtained. The AP reported that the "Secret Service contacted The Associated Press on Wednesday and asked for copies of the leaked e-mails, which circulated widely on the Internet. The AP did not comply." It is also unlikely that a court would require the AP to give up its copies.
The key case is Bartnicki v. Vopper, 532 U.S. 514 (2001), in which the U.S. Supreme Court held that the government could not punish the “repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue” by media outlets that had not been involved in the interception, but were aware that the recordings were the product of unlawful interception. The Bartnicki Court found the media's dissemination of the illegally obtained cell phone communications protected because:
First, respondents played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else.… Third, the subject matter of the conversation was a matter of public concern.
While Gov. Palin's Yahoo! email is a private account, a court would likely consider at least some of the emails to be a matter of public concern, especially in light of the questions surrounding the Palin administration's use of non-government e-mail accounts to conduct state business. Indeed, given the intense public interest in Gov. Palin stemming from her Vice Presidential campaign, a court would likely be very sympathetic to arguments for the newsworthiness of the pilfered email messages.
Thus, while the individuals who broke into Gov. Palin's personal email account have likely broken the law, news media who played no part in the access to Gov. Palin's account and obtained the email documents lawfully, such as by pulling them off the web, are entitled under the First Amendment to republish any newsworthy email messages.