Palin speaking at the Republican National Convention

Last Wednesday, an online hacker gained access to Republican Vice-Presidential Candidate Sarah Palin’s email account by correctly answering Yahoo’s security questions and resetting her password. After logging into her account, the hacker took screen shots of Palin’s inbox and personal emails. These screen shots were sent to websites, such as gawker.com, which subsequently published the images.

Supplementing state statutes that regulate illegal on-line activities, the Stored Communications Act and the Computer Fraud and Abuse Act both provide federal means for prosecuting the hacker. But in addition to the individual who logged into Palin’s email, attention has been drawn to the websites that published screen shots of her Yahoo! account. While it is easy to share Bill O’Reilly’s outrage at the invasion of privacy that Palin has suffered, his call for “those who posted the emails go to prison for a very long time” goes too far.

In 2001, the Supreme Court ruled on a strikingly similar topic in Bartnicki v. Vopper, which addressed a radio commentator broadcasting an illegally intercepted phone conversation. The Court ruled that because the conversation was illegally obtained by a third party, the radio station (who was not involved in the illegal interception) was protected by the First Amendment in its right to disclose the newsworthy material.

The situation here is analogous. An individual illegally obtained private communications. He then sent them to numerous websites. Because the websites were not involved in the illegal procurement of the material, the First Amendment protects their right to publish the information. So while Bill O’Reilly’s moral indignation is understandable, his call for justice has no legal backing.

–Katherine Thornton

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