DOJ policy statement may preclude hacker prosecution

Some industry analysts think that the U.S. Department of Justice would pass on prosecuting the hacker who broke into Sarah Palin’s Yahoo! e-mail account. The reason is tied to a 2003 Ninth Circuit U.S. Court of Appeals decision that – get this – the DOJ doesn’t exactly agree with.

So much for following the law. Just saw this post on Malkin’s site so I’m providing additional information for readers.


Under the Stored Communication Act (SCA), it is illegal to access without permission a wire or electronic communication while it is in electronic storage. A 2003 case, Theofel v. Farey-Jones, ruled that electronic storage refers to e-mails that have been read, as well as those that are unopened.

The DOJ, however, is not a huge fan of the Theofel decision.

The agency’s computer crimes and intellectual property division “continues to question whether Theofel was correctly decided, since little reason exists for treating old email differently than other material a user may choose to store on a network,” according to the DOJ’s Prosecuting Computer Crimes Manual.

Are they kidding? The DOJ is saying that they want to treat e-mail that was read differently than e-mail that has yet to be read?

What about all of the other personal information  including e-mail addresses, names and phone numbers posted by the hacker?

Does this mean if my pay stub is sent electronically and resides on my personal, secured server, it’s open to hackers if I’ve already accessed the document?

Do we see how stupid this is? The DOJ is whacked-out on this one. Get this crazy definition of electronic storage.

“The term ‘electronic storage’ has a narrow, statutorily defined meaning. It does not simply mean storage of information by electronic means,” according to the DOJ. “If the communication has been received by a recipient’s service provider but has not yet been accessed by the recipient, it is in electronic storage. When the recipient retrieves the email or voice mail, however, the communication reaches its final destination. If the recipient chooses to retain a copy of the communication on the service provider’s system, the retained copy is no longer in electronic storage.”

Of course, the last third of PCMag’s article reviews the completely unsubstantiated charge that Palin used the Yahoo! account to hide state business communications she wanted to keep off state application and file servers.

Not even sure why that is still being brought up since the hacker completed his own investigation for the world to see and – not surprisingly – found zip.

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Steve McGough

Steve's a part-time conservative blogger. Steve grew up in Connecticut and has lived in Washington, D.C. and the Bahamas. He resides in Connecticut, where he’s comfortable six months of the year.


  1. bob z on September 24, 2008 at 8:42 am

    "The DOJ is saying that they want to treat e-mail that was read differently than e-mail that has yet to be read?"

    No they are saying treat it the same as other network stored files.

  2. Steve M on September 24, 2008 at 9:09 am

    "No they are saying treat it the same as other network stored files."

    Still do not understand it. I think that they are saying that if you read it and then leave it on the Yahoo! server (in this case) and someone hacks in to look at it and spread it around – you're SOL.

    Would you say that is the DOJ position?

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