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Gov Palin email hacked posts them 1st Amendment?

by Slikkster / September 18, 2008 1:19 AM PDT


In case you didn't hear, Governor Sarah Palin's personal email account was hacked, and many of them were then posted by

Aside from political persuasions and whether or not she should have had a personal email account or a better password, etc., etc., etc., the question is: Is at all culpable for posting her private email messages on its website, even if someone else hacked the account? For the sake of fairness, let's just pretend for this theoretical discussion that Joe Biden and Gov Palin's personal email accounts were hacked and posted so as not to make this a partisan issue.

Obviously the person/people who hacked are in legal jeopardy. But is a website that posted these personal emails also legally liable for its actions? I heard an interesting debate on TV about it this morning, and it seems the law might be a little ambiguous here. One person said the first amendment shield might still protect gawker even though many might think what they did was immoral/unethical. The other lawyer said that gawker crossed the line and delved into unprotected content.


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It's probably a non-issue
by mc4_a / September 18, 2008 1:31 AM PDT

Because the emails were spread so quickly, no one source was responsible for spreading it. Going after one or two parties when thousands of website had it looks like selective prosecution.

I know you want to avoid it, but I think the fact that this is information that should have been public anyway would play a part in if a prosecutor would go after anyone.

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by shawnlin / September 18, 2008 2:05 AM PDT

here's an analogy -
A thief breaks into your place, takes a bunch of your property, and then puts it out in a public park for anyone to peruse through and procure for themselves. Assume that the property easily, clearly traceable to you. There's no "if found, please return" note on the it looks like you're just outta luck and would have to go to court to reclaim any belongings that you suspect the passerby folks picked up for themselves. So Gawker would be the people sifting through and displaying the stuff from your place. There's realistically no way to fix your reputation if the e-mail go out, but Gawker may be liable for compensation to any reputation damage, etc.

Another analogy - if you find 5 bucks on the street, what do you do? In this case, the bill is not traceable, but again doesn't have a "if found, please return" note. What then?

hmmm...I'm thinking the ACLU may get into this, but I don't know what argument/side they'd defend...


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good analogy
by Fe1d / September 18, 2008 3:33 AM PDT
In reply to: analogy...

Or posts a fake craigslist ad giving away all your stuff:

Receiving stolen merchandise is still a crime, assuming you should have suspected it was stolen or failed to return it immediately upon discovering it was stolen. Unfair? Not if you are the property's legal owner.

Craigslist qualified for safe harbor protection. If Gawker similarly qualified for safe harbor with respect to the post, then it's a non-issue. However, if Gawker acted in an editorial capacity, then it appears to have known it was receiving illegally-obtained information, in which case Gawker could be found liable.

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Both sides
by Fe1d / September 18, 2008 2:59 AM PDT

Lawyers are trained to argue both sides of any issue, so I'm not surprised they did. As usual, the facts of the case can tip a court ruling either way.

When two constitutional rights collide, courts can go either direction or split the difference based on the facts of the case.
The first amendment isn't absolute in the sense that perjury, fraud, slander, libel, copyright violation, trademark infringement, invasion of privacy, outing spies, verbal harassment, and many other forms of expression remain illegal under some circumstances.

Similarly, the right to privacy is by no means absolute. As public figures, Biden and Palin legally have lesser privacy protections than private citizens, in service of first amendment rights. Yet, many rights, including abortion rights, are predicated upon the implied constitutional right to privacy, so courts are hesitant to set precedent that weakens privacy rights, even for public figures.

To build a case against, many questions must be answered. Is the published information true (if not, libel is possible, but not likely)? Was the info obtained illegally? Did Gawker "materially participate" in any illegal act (pay for screen shots or enter the hacked password)? Would the info have been legally available anyway (under Freedom of Information, or the inherent openness of unencrypted e-mail)? Is there evidence of harm (did poll numbers drop after the revelation, or was fraud or harassment committed as the result of publishing the info)? Is there evidence of malice (a key Gawker employee bad-mouthing the victim)?

In this case, the suspects allegedly obtained the account's password in violation of all kinds of information security legislation, perhaps most infamously the DMCA. If then logged in with that password to make its own screen shots, it would probably be found as culpable as the original hackers. Gawker would be more difficult to prosecute if it merely redistributed screen shots without directly breaching the account, so claims must be verified.

To me, though, the central question is whether or not e-mail, in general, even allows for a legal "expectation of privacy". Judges have answered both "yes" and "no". Most e-mail users will answer "yes, even if unencrypted", while most network geeks will answer "no, not unless it's encrypted". Without encryption (like OpenPGP), it's relatively trivial to intercept e-mail with a packet sniffer, which is necessary to maintain network security. If e-mail info is inherently public, then has only republished info that was already public, which is not a crime, even if crimes were committed to obtain the public information.

The precedent with respect to public figures is mixed, but generally, it is illegal to access their personal e-mail without permission or a court order except for unavoidable maintenance purposes. It isn't a stretch to claim the e-mail is thus "private information", so publishing it without permission can be illegal. Naturally, the line between public and personal email can get blurred for public persons.

Short answer is, I got no clue.

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Gov Palin email hacked posts them 1st Amendment?
by wizkids32 / September 19, 2008 7:24 AM PDT

The person who hacked Gov. Palin's email by answering some of the question that they ask when they forget the password and also this person when to Yahoo and said that they forgot the password.

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Fair Questoin
by Renegade Knight / September 20, 2008 12:17 AM PDT

Is a pawn shop liable for stolen goods? I recall where someone found their stuff at a pawn shop, and then was told they had to pay for it to buy it back.

Using pawn shop logic It's really a function of if the site knew the source. Hacked vs. a legitmate "leak". If they were just doing what they normally do then they areally aren't liable. If they were involved then they are.

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Not that easy
by Fe1d / September 20, 2008 9:52 AM PDT
In reply to: Fair Questoin

> Is a pawn shop liable for stolen goods?

Yes, as soon as they know it is stolen and fail to return it to the rightful owner or the police.

> I recall where someone found their stuff at a pawn shop, and then was told they had to pay for it to buy it back.

If so, the pawn shop could have been charged with extortion and/or receiving stolen goods with intent to sell, assuming the property owner has evidence the goods were stolen (police report, etc.) and the pawn shop cannot prove the property owner was running a scam.

> Using pawn shop logic It's really a function of if the site knew the source. Hacked vs. a legitmate "leak". If they were just doing what they normally do then they areally aren't liable. If they were involved then they are.

It's not that simple, as described in earlier posts.

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