Vice presidential candidate Sarah Palin’s now-public emails could fundamentally change internet and free speech laws in the United States. Last week, Palin’s Yahoo email account was broken into and many of the emails were posted on Wikileaks, a website designed to publicize leaked government documents, the media gossip blog Gawker, and other websites. The McCain campaign has called the incident a “shocking invasion of the governor's privacy and a violation of the law.” Writing for the conservative blog Powerline, John Hinderacher cited the crime as, “Just another reminder that there is no sense of decency on the Left.” The issue has been widely covered in the mainstream media, but the real implications of the event may not be felt for years to come.
“I predict that some day we will look back on this breach as a watershed event in the history of statutory Internet privacy,” Paul Ohm writes for the law blog Concurring Opinions. The leak of Palin’s emails could motivate Congress to pass strict privacy laws, but also to punish websites like Gawker and Wikileaks, possibly igniting, “a fierce First Amendment debate.”
Under current laws, Gawker and Wikileaks are likely protected from prosecution, but that hasn’t stopped readers from sending various threatening emails. One of the few inoffensive messages read, “Get a good lawyer, in fact get at least a dozen… you are going to need them when the Secret Service and the FBI come to visit. Jerks!” Orin Kerr, a professor at the George Washington University Law School, disagrees. Kerr writes for the Volokh Conspiracy: “While it's unseemly and perhaps rather nasty to post it, it's normally not a crime to post evidence that was obtained as a fruit of crime”
That didn’t prevent justice officials from trying to intimidate journalistic organizations. The Associated Press, one of the many organizations that has reported on the incident, reports that “Secret Service contacted the Associated Press on Wednesday and asked for copies of the leaked emails, which circulated widely on the Internet. The AP did not comply.” Kurt Opsahl writes on the Electronic Frontier Foundation blog Deeplinks that the Associated Press and Gawker are likely not in any legal trouble, for now: “While the individuals who broke into Gov. Palin's personal email account have likely broken the law, news media… are entitled under the First Amendment to republish any newsworthy email messages.”
The incident has dredged up a fair amount of animosity toward the press, in spite of the legality of posting the emails. Andrew Grossman writes for the conservative Heritage Foundation, “just because it’s legal doesn’t mean it’s right.” On his show for Fox News, Bill O’Reilly said, “I’d like to see the website [Gawker] prosecuted.”
“Congress often enacts privacy protecting legislation only in the wake of salient, sensationalized, harmful privacy breaches.” Ohm write for Concurring Opinions. This could be one such incident. Should Congress decide to attack websites that post leaked documents, it runs the risk of infringing on the right to free speech and fundamentally changing the internet for the worse. The chances of this happening are even higher should the McCain-Palin campaign win the 2008 election. If that is the case, the true victims of this crime are still unknown.