What do you get when you mix a racy photo, alleged computer hacking, Twitter, and a Congressman named Weiner? (Besides Jon Stewart’s debut as an R&B producer.) That’s right, faithful readers, you get a smorgasbord of 21st century legal issues, and an example of why privacy is harder to keep than ever. You also get a great reason to think twice about what you save on your computer. And you get the joy of what is undoubtedly the best name for a scandal since “DickiLeaks.”
You’ve probably heard about Congressman Anthony Weiner, and the tough week he’s had. To recap, Weiner’s hard drive was “hacked” and a bulging photo (labeled “package.jpg”!) was sent to a college student from his Twitter account. Then the interwebs started chirping and the politician non-denial denials started (“I can’t say with certitude” [that it isn’t my bulging crotch making the Internet rounds]). Then the conservative bloggers found some absurd photos of Weiner showing off his pecs in front of framed photos of his family. And before you know it, we’ve got tearful televised confessions (“The picture was of me, I sent it”), and voila, a new word is seared into the American collective consciousness: Weinergate! It’s hard not to feel both bad for and perplexed by Weiner, even if he isn’t exactly the first New York Congressman to get caught sending racy pics this year. But I can also only feel so bad about any situation that results in one of my coworkers walking into a department meeting and announcing, “I can’t get enough Weiner!”
Of course, at this point, we all know that Weiner’s initial explanation for the sudden proliferation of his groinal region on the Internet — that his Twitter account was “hacked” — was as bogus as it sounded. But what if we lived in a magical world where a politician’s initial explanation for a totally inexplicable scandal was actually true? Let’s look at what anti-hacking laws say Weiner could have done. (Besides resigning, hiding out for a year, then taking a cushy job on cable news).
(Note: not covered here are potential claims for copyright infringement based on the unauthorized distribution of the photo itself, a favorite theory in the ever-popular celebrity-trying-to-block-a-sex-tape segment.)
Every state, and the federal government, has its own anti-hacking law. Here in California, it’s illegal to access and make use of any data from a computer without permission. In the yarn spun by Weiner, he’d have a slam dunk case against the hacker that accessed his hard drive and sent the photo. But here’s the kicker: the penalties under California law focus on damage to a computer system caused by a hacker, not on the revealing of private information. So unless Weiner could prove that his hacker damaged his computer, California hacking laws wouldn’t do him much good. In other words, the law hasn’t kept up with Internet technology.
Interestingly (for us legal nerds anyway) sending an email from someone else’s internet domain name to damage a computer is also illegal in California. Ignoring damages for now, the Twitter domain name doesn’t belong to Weiner, and his tweets aren’t private emails. But, Weiner does use @RepWeiner as his personal webpage (what’s with the turquoise sweater?), and to communicate what he says to who he wants — his followers. Ditto with his Facebook wall. As far as tweets and wall posts, it’s hard to tell how a court would sort out e-impersonation.
Federal law also seems behind the times. It’s illegal, under federal law, to access a computer without permission with intent to defraud. But Weiner would also have to show that the value of what the hacker got from his computer was over $5,000. Would Weiner really want to get up in front of a judge and tell the world that the picture in question is worth that much?
Weiner’s other federal option: it’s illegal to obtain information from a protected computer, without permission. But this law also raises another awkward question: what information did the hacker get when he found the photo? OK, maybe that’s a better question for Jon Stewart.
Now, we wonder, what’s a Weiner to do? Even if Weiner’s “hacker” story was legit, the awkwardness he’d have faced if federal charges were filed ties into an important intersection between the reality of modern day online privacy. If Weiner or the government goes after the hacker, his story stays in the news. Later on, in court, someone would have to explain exactly where the picture came from, how it “ended up” on Weiner’s computer, and how the hacker got a hold of it. Weiner probably doesn’t want that kind of publicity. And what’s worse, court cases can take years, unlike the few seconds it took you to look up Weiner’s, you know… picture. And surely Weiner would be smart enough not to try to disappear the picture from the Internet altogether: the Streisand Effect is real and powerful. (Well, that assumes Weiner would also be smart enough never to send a picture like that over Twitter in the first place…)
For now, Weiner has refused to resign, noting that “Nothing about this should reflect on my official duties or oath of office.” (I wonder what Scalia would have to say about the Framers’ intent on Twitpics…) Maybe he’ll be inspired by his own not-really-close-call with hacking and beef up those federal laws…