Clearing your browser history can be deemed 'obstruction of justice' in the U.S.
Boston Marathon bomber's acquaintance could face 20 years in prison for deleting files
Next week, a 24-year-old man who knew Boston Marathon bombers Dzhokhar and Tamerlan Tsarnaev is scheduled to appear in U.S. Federal Court for sentencing on obstruction of justice charges related to the 2013 attacks.
Khairullozhon Matanov, a former taxi driver, did not participate in or have any prior knowledge of the bombings, according to U.S. authorities.
What could land him 20 more years in prison — where he has been since his arrest — are the charges that he deleted video files from his computer and cleared his browser history in the days following the attacks.
A Grand Jury indictment issued on May 29, 2014, states that Matanov "deleted a large amount of information from his Google Chrome Internet cache" following the bombing, including "references to the video of the suspected bombers [later identified as the Tsarnaevs]," "two of the photographs of the bombers released at approximately the same time," and "a photograph of Officer Sean Collier, who had been allegedly killed by Dzhokhar and Tamerlan Tsarnaev."
According to the indictment, the FBI was able to restore some of the deleted information from Matanov's computer in "an ongoing forensic review."
"The information that Matanov deleted included his computer's Internet cache, which his default Internet browser, Google Chrome, used to speed up the program's operation by storing some Internet information," it reads. "Matanov deleted his Google Chrome activity selectively, leaving behind Google Chrome activity from other days during the week of April 15, 2013."
As a result of this alleged behaviour, Matanov was charged with one count of "Destruction, Alteration, and Falsification of Records, Documents, and a Tangible Object in a Federal Investigation" — which carries with it a penalty of up to 20 years in prison.
Three more counts stemming from accusations that he lied to investigators about his activities and relationship with the Tsarnaev brothers carry a sentence of up to eight years in prison each.
While he maintains his innocence, Matanov pleaded guilty to all charges against him earlier this year in hopes that U.S. District Judge William G. Young will accept his plea agreement for a lesser sentence of 30 months.
The Sarbanes-Oxley Act
Matanov's is the latest, and perhaps most high-profile, non-corporate court case to spark conversation around a U.S. law known as the Sarbanes-Oxley Act.
Enacted by Congress under President George W. Bush in 2002 following the Enron scandal, the law essentially makes knowingly destroying or concealing any record that could be part of a federal investigation punishable by up to 20 years behind bars.
"The law was, in part, intended to prohibit corporations under federal investigation from shredding incriminating documents," wrote Juliana DeVries for The Nation last week. "But since Sarbanes-Oxley was passed in 2002, federal prosecutors have applied the law to a wider range of activities. A police officer in Colorado who falsified a report to cover up a brutality case was convicted under the act, as was a woman in Illinois who destroyed her boyfriend's child pornography."
DeVrie's piece, called "You Can Be Prosecuted for Clearing Your Browser History," appears to have struck a chord around the web.
After all, who among us hasn't intentionally cleared our own browser history for one reason or another? Some of us even have our computers set to do this automatically as a form of maintenance.
Uhm, WTF, Sarbanes-Oxley can be applied to people, in private, outside work. For deleting browser history?! <a href="http://t.co/wE451UDo73">http://t.co/wE451UDo73</a>—@wfaler
Others argue that it's not that simple, however.
As the law states, "Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies" a document "with the intent to impede, obstruct, or influence" an investigation is subject to penalties.
If one doesn't know they're deleting something that could be of use to investigators, can they still face legal trouble?
According to DeVries, possibly.
Sarah Palin's email hacker charged under same law
"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," she wrote. "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."
An example she provides is that of David Kernell, a University of Tennessee student who was convicted under the Sarbanes-Oxley Act in 2010 for deleting evidence that he had accessed Sarah Palin's email account (using publicly available information.)
Changing Palin's Yahoo password to "popcorn" landed Kernell a misdemeanour charge of "unauthorized access to a protected computer," while clearing his own browser history and other information that may have made it easier for federal investigators to find him resulted in a felony obstruction of justice charge.
While he could have faced 20 years under the Sabanes-Oxley Act, A U.S.Appeals Court judge sentenced the 20-year-old student to one year and one day in prison.
"When [the cleaning of his computer] occurred, Kernell wasn't under investigation," wrote TechDirt's Tim Cushing of the case. "At best, it could only be assumed that an investigation would result once the hacking attempt was discovered."
He continued that, under Sabanes-Oxley, "U.S. citizens are almost expected to hold onto everything, just in case... and if you've 'destroyed' any data prior to the examination of your electronic devices, you could face felony charges for performing simple computer maintenance."
Electronic Frontier Foundation senior staff attorney Hanni Fakhoury agreed, telling The Nation that the U.S. government wants and believes it deserves access to all online data for policing purposes.
Speaking about Kernell's case, he said that the government's "underlying theory" is this:
"Don't even think about deleting anything that may be harmful to you, because we may come after you at some point in the future for some unforeseen reason and we want to be able to have access to that data. And if we don't have access to that data, we're going to slap an obstruction charge that has as 20-year maximum on you."