The Sarah Palin E-mail Privacy Act of 2009
posted by Paul Ohm
As has been widely reported, Sarah Palin’s Yahoo e-mail account has been breached, and its contents have been posted to wikileaks. Gawker.com is posting excerpts from the e-mail messages including photographs.
As usual, Orin Kerr (with some assists from his merry band of commenters) is doing a great job fleshing out the legal analysis. A crime has been committed, there can be no doubt, and Yahoo!’s lawyers will probably be kept up late tonight receiving and responding to incoming subpoenas and court orders.
I wanted to come at this story from a slightly different angle: I predict that some day we will look back on this breach as a watershed event in the history of statutory Internet privacy. As Dan and many others have noted in their articles, Congress often enacts privacy protecting legislation only in the wake of salient, sensationalized, harmful privacy breaches. Thus, Judge Bork’s video rental records begat the Video Privacy Protection Act and the murder of actress Rebecca Schaeffer by a stalker with DMV records led, eventually, to the Drivers’ Privacy Protection Act.
Compared to these examples, the breach of Sarah Palin’s e-mail account is on a higher plane of salience and sensationalization. The most scrutinized woman in the country has dozens of her private correspondences pasted all over the blogs. Even if nothing is found in these messages which damages her or the campaign, and whether or not the perpetrators are caught, many will call for tougher privacy laws, and Congress and state legislatures will feel great pressure to deliver. And they won’t just be targeting the breachers–many will criticize the Gawkers and Wikileaks for helping disseminate the e-mail messages (if not the Kerrs and Ohms and Washington Posts for linking to Gawker), so expect a fierce First Amendment debate. I can even see calls to make IP addresses easier to track. Mandatory data retention, anyone?
If I am right about this, expect the E-mail Privacy Act of 2009, and expect it to be a blockbuster. If you’re an activist, government lawyer, e-mail provider, or scholar with an interest in information privacy, I advise you to start putting together your statutory wish lists.