Claire Bernish

June 9, 2015

(ANTIMEDIA) In 2002, President George W. Bush signed the Sarbanes-Oxley Act into law following the Enron and Worldcom scandals, in part, to prevent companies from intentionally doctoring records or destroying documents when under federal investigation. It was designed for corporate accountability and to ease investigation and the prosecution of fraud.

What has resulted from a particular provision in the law, however, amounts to such creative interpretation that it invites a ‘guilty until proven innocent’ assumption that could penalize you with up to 20 years in prison for deleting your browser history. In fact, section 802 of the law (often referred to as SOX) has been used successfully in prosecutions for that very reason.

Amidst a sea of controversy over the applicability of the law in matters of attorney-client privilege, Phillip Russell, a lawyer from Connecticut, caved by agreeing to plead guilty to a SOX indictment of obstruction of justice, solely for destroying a client’s computer with evidence of child pornograpy in 2007. Facing the possibility of 14 months in prison, Russell settled despite concern over precedent since he didn’t know his client was under federal investigation when he dismantled the computer. The legal community was shocked by his decision and felt this was an overreach of a law meant to hold corporations in check—not target individuals, and certainly not attorneys.

Russell’s case was one of many that opened an ostensible Pandora’s Box of possible lines of prosecution under the Sarbanes-Oxley law.

On the night of the Boston Marathon bombings, former cab driver Khairullozhon Matanov went out to dinner with his new friend Tamerlan Tsarnaev and the friend’s brother, Dhzokhar. Matanov had immigrated from Kyrgyzstan, was granted asylum, and had been enjoying an uneventful, yet peaceful life. That is, until four days after that dinner when he saw his friends’ pictures on CNN’s website, listed as suspects in the attack.

Believing he should be upfront about his association with the Tsarnaevs, Matanov went to talk with local police, and also agreed to be questioned by the FBI. He allegedly told a few lies during those interviews, including the number of times he viewed the brothers’ pictures online before he came to the station. When he arrived home, he deleted a few files and cleared the search history from his browser.

The FBI proceeded to put him under a microscope 24 hours a day, even sending an aircraft to circle his home at night—something the FAA was unable to divulge to Matanov’s perplexed and outraged neighbors at the time. Agents tailing him once called his lawyer to tell him to stop speeding.

After more than a year had passed—without any evidence that he was involved in the bombings in any way—he was arrested and charged with four counts of obstruction of justice. Three of the charges pertained to false statements given to law enforcement, but the fourth was for destruction of “any record, document, or tangible object” as found in SOX section 802.

Matanov suddenly faced the possibility of 20 years in prison—for deleting his own files and clearing his own search history. To avoid the possibility of such a lengthy imprisonment, he recently pled guilty to all four charges while maintaining his innocence to the judge. Still dumbfounded by everything that’s happened, Matanov said, “The whole case is a mystery. [The] FBI is trying to ruin my life.”

David Kernell is also well aware of this frightening overreach: his case set the precedent.

When he was a student at the University of Tennessee he broke into Sarah Palin’s email account, for which he was charged with a misdemeanor for unlawfully obtaining information from a protected computer. However, because he cleared his browser’s cache after doing so, Kernell was also convicted of a felony under SOX for destroying evidence in a federal investigation—despite not being informed about or even aware of the ongoing probe at the time he did so. In a benchmark decision, the court deemed “that the belief that a federal investigation directed at the defendant’s conduct might begin at some point in the future” was enough to uphold the conviction. In other words, the government feels it has a right to your stuff.

As Hanni Fakhoury of the Electronic Frontier Foundation put it, “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 a 20-year maximum on you.”

The digital age seems to have exposed the government’s latent paranoia. Massive surveillance tactics apply to all Americans because a few might be guilty at some point. Everyone must preserve all of their digital records because the government might want to examine them in the future. Just how far they will go remains unknown. Could you be prosecuted, as The Nation points out, for uninstalling Firefox? Deleting a potentially incriminating tweet? What if you plan to sell your laptop and need to wipe the hard drive completely clean?

“The idea that you have to create a record of where you’ve gone or open all your cupboards all the time and leave your front door unlocked and available for law enforcement inspection at any time is not the country we have established for ourselves more than 200 years ago,” said Fakhoury.

He’s right, of course, but it appears the government would very much like for you to just go ahead and leave the light on, too.

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