When I was young and stupid -- say, three years ago -- I dated a guy heretofore known as The Control Freak. One day I noticed he'd left his e-mail account open. I felt a powerful urge to see if he'd treated his ex-girlfriend the way he treated me. I found out that he had.
Three things happened. One, I confessed. (I'm Catholic. I can't help it.) Two, I never read his e-mail again. And finally, despite my apologies, he lorded my indiscretion over me until we mercifully broke up. I can't say I blame him. Like many people who grew up in the computer era, I consider private e-mail a sacrosanct space, more like a diary than a daykeeper. Invading someone's e-mail is like sitting on that person's bed and flipping through his or her journals.
Which brings us to the curious case of Republicans infiltrating Democratic e-correspondence. Private, or supposedly private, Democratic memos were leaked to conservative media outlets The Washington Times, The Wall Street Journal, and possibly radio and television host Sean Hannity. At issue is a computer system that allowed Republican staffers to read Democratic memos and correspondence without a password. Some of these staffers argued that they told the Democrats about the security breach in the summer of 2002. Others believe mum was the word before November 2003. In any case, the Republicans had more than a year of unfettered access to Democratic documents before this scandal became public.
And what a year it was. At issue is a series of Democratic strategy memos on controversial judicial appointments. A year ago, columnist Bob Novak detailed Democratic strategy for blocking conservative nominees to the federal bench. The descriptions in his column, including the Democratic characterization of blocked nominee Miguel Estrada as a "stealth right-wing zealot" who was "especially dangerous, because he is a Latino" were straight from the pilfered electronic files. In some accounts of the case, the content of the memos has become as much of an issue as the spying itself.
In a press conference, Senate Judiciary Committee Chairman Orrin Hatch admitted that an investigation by federal prosecutors "revealed at least one current member of the Judiciary Committee staff had improperly accessed at least some of the documents referenced in the media reports and which have been posted on the Internet."
The staffer, Manuel Miranda, first went on paid administrative leave and then resigned. Reached by The Boston Globe, which broke the story, Miranda said, "There appears to have been no hacking, no stealing, and no violation of any Senate rule. Stealing assumes a property right and there is no property right to a government document. These documents are not covered under the Senate disclosure rule because they are not official business and, to the extent they were disclosed, they were disclosed inadvertently by negligent [Democratic] staff."
Nice try. Lee Tien, senior staff attorney for the Electronic Frontier Foundation, notes, "Each time the Republicans accessed the Democrats' files without authorization, they at a minimum violated the federal Computer Fraud and Abuse Act, 18 USC Sec.1030(a)(2)." That statute includes anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains 3; information from any department or agency of the United States."
Tien also rejects the reports that focus on the content of Democratic memos versus their theft. In describing this crime, he says, "It's pretty sleazy to blame the victim when you're the one exploiting the weakness in the first place. Good computer security is hard. Poor computer security is extremely common. I don't believe in double standards, so maybe we should think of all the companies and governments who have been hacked in the past few years because of poor security."
And what about the disputed Republican argument that they told Democrats about the problem a year ago? "It's as if they're saying `I told you the lock on your back door was broken -- if you didn't fix it, I should be able to walk right into your house and take what I want,'" says computer-privacy expert Mike Godwin, senior technology counsel at Public Knowledge.
It's been hard for this story to get much play in a time filled with talk of weapons of mass destruction (or the lack thereof), Democratic primaries, and presidential budget recommendations. But the continuing investigation could turn this case of file spying into a full-on electronic Watergate.
Senate Sergeant at Arms William Pickle is now turning over backup tapes of the Judiciary Committee computer to the Capitol police. This prompted a group of Republicans on the Judiciary Committee, including Saxby Chambliss of Georgia and Lindsey Graham of South Carolina, to complain that the investigation could compromise their own e-privacy. "We strongly object to allowing anyone to read backup tapes or other electronic media from the Judiciary Committee server, the Exchange server or otherwise breach the privacy of our electronic files and communications," they wrote in a letter to Pickle. So far, their concerns have taken a back seat to the needs of the investigation.
In the end, Republican gains from scanning the memos may be far outweighed by disclosures from the spying case. After all, those who live by the sword -- or the mouse click -- can die by it as well.
Farai Chideya is the author of the forthcoming Trust: Reaching the 100 Million Missing Voters.
