Twenty Years in Prison for Clearing Your Browser

Because of the legal response to the Enron scandal, you can do hard time for clearing your browser.

In 2002, as this article in The Nation reviews, Congress passed the Sarbanes-Oxley Act with the intent of prohibiting companies under investigation from shredding documents. They wanted to prevent another Enron implosion. But prosecutors have found it to be an elastic law that gives them a great deal of leverage for putting people in prison.

Prosecutors are able to apply the law broadly because they do not have to show that the person deleting evidence knew there was an investigation underway. In other words, a person could theoretically be charged under Sarbanes-Oxley for deleting her dealer’s number from her phone even if she were unaware that the feds were getting a search warrant to find her marijuana. The application of the law to digital data has been particularly far-reaching because this type of information is so easy to delete. Deleting digital data can inadvertently occur in normal computer use, and often does.

In 2010 David Kernell, a University of Tennessee student, was convicted under Sarbanes-Oxley after he deleted digital records that showed he had obtained access to Sarah Palin’s Yahoo e-mail account. Using publicly available information, Kernell answered security questions that allowed him to reset Palin’s Yahoo password to “popcorn.” He downloaded information from Palin’s account, including photographs, and posted the new password online. He then deleted digital information that may have made it easier for federal investigators to find him. Like Matanov, he cleared the cache on his Internet browser. He also uninstalled Firefox, ran a disk defragmentation program to reorganize and clean up his hard drive, and deleted a series of images that he had downloaded from the account. For entering Palin’s e-mail, he was eventually convicted of misdemeanor unlawfully obtaining information from a protected computer and felony destruction of records under Sarbanes-Oxley. In January 2012, the US Court of Appeals for the Sixth Circuit found that Kernell’s awareness of a potential investigation into his conduct was enough to uphold the felony charge.

The mention of Matanov, above, refers to Khairullozhon Matanov who was personal friends of the Tsarnaev brothers. The night he saw they were wanted in connection with the bombing he went to the police and told them of their recent dinner together. However, several details he told the police weren’t true (he was charged with lying). But he also went home and cleared his browser history, a deed that, by itself, could have put him in prison for twenty years. The Feds never charged him with having anything to do with any terrorist attack. But his non-truthful statements, plus the crime of removing files from his computer—something that many people do on a regular basis to protect their property—were all the Feds needed.

In March, Matanov pleaded guilty to all four counts of obstruction of justice. When he entered his plea, he told Judge William G. Young that he maintains his innocence but fears a decades-long sentence were he to go to trial. His plea agreement with prosecutors calls for a 30-month sentence—still a harsh punishment for little more than deleting videos and clearing his browser history. Matanov’s sentencing hearing is scheduled for June.

“The whole case is mystery,” Matanov has said. The “FBI is trying to destroy my life.”

[See also, “Electronic Records: Convenience for Big Brother.”]

Basically, the Federal government not only uses the digital web to spy on us, but it also acts as if it owns all digital records.

Hanni Fakhoury, a senior staff attorney at the Electronic Frontier Foundation, says the feds’ broad interpretation of Sarbanes-Oxley in the digital age is part of a wider trend: federal agents’ feeling “entitled” to digital data.

When you destroy your own files, they treat you as if you had damaged government property.

In the case of David Kernell, he obviously committed a crime. But does it make any sense that the main crime was a misdemeanor while erasing data was a felony?