There are many reasons why a person might delete their browsing history: perhaps someone has a friend that their husband does not like them talking to on Facebook, and yet in all innocence they continue to do so when he is not around? Deciding to delete their browsing history as they go, in order to avoid a silly and unnecessary fight.
Or perhaps a full blooded male living in a shared house prefers to delete his browsing history because his housemates sometimes go on his PC, and he does not want them knowing how much he has been using dating websites to successfully accumulate all the dates he has been on. These are personal reasons for deleting browsing history that are completely legitimate, and necessary for a person to maintain a semblance of privacy in their daily lives.
The Sarbanes-Oxley Act is a law signed into action by President George W. Bush in 2002 (mainly in response to the Enron scandal). It is supposed to be used (and is mainly used) to deal with fraudulent corporate financial reporting. Now, however, it is being used for a wildly different reason, which could have a direct effect on every person in the US’s decision to delete their browsing history.
Next week, in a case related to the Boston Marathon bombings, a federal court will decide if when Khairullozhon Matanov (a former taxi driver and acquaintance of the brothers who carried out the bombings) deleted his browsing history in the days following the incident, he broke the law in what amounts to obstruction of justice. And the kicker? Despite apparently having no previous knowledge of the bombings, or having participated in any way in the attack, he could receive 20 years in prison for deleted his browsing history!
Prosecutors are seeking to throw the book at Mr Matanov by using a section of the Sarbanes-Oxley Act which details severe penalties for ‘destroying, mutilating, concealing, falsifying records, documents, or tangible objects’ with the intent to harm the proceedings of a federal case. Matanov’s indictment from 29 May 2014 states that following the bombings,
‘[Matanov] deleted a large amount of information from his Google Chrome Internet cache. [Including] references to the video of the suspected bombers, two of the photographs of the bombers released approximately at the same time, [and] a photograph of Officer Sean collier, who had been allegedly killed by Dzohkhar and Tamerlan Tsarnaev.’
Matanov will also face charges on three other counts, over allegations that he lied to investigators about his activities and relationship to the Tsarnaev brothers. These are charges that despite maintaining he knew nothing about the planned bombs, he has pleaded guilty to in the hope that a plea bargain will get him a reduced sentence of only 30 months.
Many people have come forward to express outrage at the fact that the Sarbanes-Oxley Act can be applied to people in a private setting for deleting their browsing history. In response to the case, senior staff attorney at the Electronic Frontier Foundation (EFF), Hanni Fakhoury ( who says that Washington feels that it is entitled to every single bit of online data for security purposes) commented that,
‘Don’t even think about deleting anything that may be harmful to you, because we (the government) 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,’
Although people have been quick to counter this argument by saying that the law would only apply to people who knowingly delete their web history in order to pervert the cause of justice, Julianna DeVries ( form The Nation) has written that in reality the law can be applied much too broadly because prosecutors ‘do not have to show that the person deleting evidence knew there was an investigation underway.’
As such, the casual deleting of web browsing history – despite an accused’s lack of knowledge of a criminal investigation even taking place – could get them in trouble with the law for obstructing the course of justice, and land them with a maximum sentence of 20 years in prison. DeVries explains,
‘[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’
At the moment it is unknown whether prosecutors will succeed in using the Sarbanes-Oxley Act in this case, but should they be successful it will open up a whole new can of worms in the debate concerning the power struggle between governments and its citizens, and the question of who owns, and who has a right to control, one’s personal digital footprint.