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Comment by blatherard | Hacker News Reader

This sounds like another "banal-sounding activity that everyone does is suddenly illegal!" misunderstanding. The charge is that someone destroyed potential evidence on their computer with the intent of preventing that evidence from being found by an investigation that they believed was likely. In the non-digital realm, this is like shredding business records when you suspect you're being investigated. Shredding isn't illegal, but attempting to obstruct an investigation is, and (IMHO) rightfully so.

Which is to say: deleting your browser history as part of an effort to thwart a criminal investigation could land you in prison.

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It's worse than that.

Deleting your browser history if they government says that you thought it might one day be relevant in an investigation can land you in prison.

For example: You're downloading run of the mill adult-on-adult pornography and one of the links that you click redirects you to a child porn site, you weren't looking for child porn and you didn't want any but you inadvertently browsed to a site that hosts it, so you delete all of your cache because you don't want that on your computer. Well, if that site was a honeypot and when the authorities come investigating, they'll use your cleared cache as proof that you knew you were doing something illegal and prosecute you for it despite the fact that you didn't intentionally break the law.

I did a little googling, and destroying the porn would actually be the right thing to do and so shouldn't get you in trouble. According to "18 U.S. Code § 2252A - Certain activities relating to material constituting or containing child pornography", an affirmative defense is not having much and either deleting it promptly or reporting it:

  (d) Affirmative Defense.— It shall be an affirmative defense to a charge of
      violating subsection (a)(5) that the defendant—
    (1) possessed less than three images of child pornography;
    and
    (2) promptly and in good faith, and without retaining or allowing any person, 
       other than a law enforcement agency, to access any image or copy thereof—
        (A) took reasonable steps to destroy each such image;
        or
        (B) reported the matter to a law enforcement agency
            and afforded that agency access to each such image.

(source: https://www.law.cornell.edu/uscode/text/18/2252A)

In this hypothetical case, wouldent (1) still give you a problem, as it is likely that your browser downloaded more than three images. In that case, you are already in violation of this law, regardless of what you proceed to do with the images, so clearing your cache would be illegal.

Yeah, reporting it is definitely the right thing to do and would totally go well for you. /s

Did you notice the "or"? Just delete it if you feel that way.

On a tangent: if people do accidentally find indecent images of children, or images of child sexual abuse, there are methods to report those images anonymously.

The Internet Watch foundation is one site. There are probably others for different countries. https://www.iwf.org.uk/

The IWF has just announced a collaboration with Google, Facebook, Twitter: http://www.bbc.co.uk/news/uk-33844124

I'm not sure when this section of the US Code became law but back in the 1990s, I was looking at some adult material and I followed a link to some .ru site that had material that was highly suspect. I made note of the domain, closed my browser and opened the phone book.

I called the local FBI office and reported the site. I never heard anything else on the matter. To be honest, I was more worried that it was a honeypot and I wanted to make sure that if they were watching, they knew that I didn't go there on purpose.

That's an affirmative defense to possession but not to the destruction of evidence.

The man in this story wasn't otherwise implicated in the terrorist plot but they got him for deleting his internet cache because he was afraid of how it would look.

How is this different than shredding all the junk mail you receive, then having the Feds show up and say that you're obviously involved in a mail fraud conspiracy because you failed to properly forward a misdelivered letter?

The issue here is not that the destruction is evidence for involvement; that was established otherwise. The issue here is that individuals knowingly destroyed evidence with the intent to obstruct investigations.

How do you determine it was evidence if it is destroyed? Who knows if I deleted conspiration notes instead of porn?

It's on the state to establish that it was evidence. In this case, they did some computer forensics.

The trouble is, no amount of "computer forensics" can explain the reason why records disappeared. May be it was a virus, a bug in browser or someone else had access to the computer.

Nobody can say for sure if he did it knowingly or not, and this isn't the point. One thing is when you try to hide the evidence (i.e. it can be proved that you lied about it), but you fail to. The other thing is when there's no evidence. You cannot charge man with anything if there's no evidence of crime, but you "think" he destroyed it on purpose (prior to investigation). Maybe he deletes browser history on the daily basis. It's OK. There's nothing wrong with it. Shouldn't be. No matter how "suspicious" it seems to you, your suspicions don't matter.

Nobody can say for sure if he did it knowingly or not

And nobody can say absolutely for sure whether a murderer had the mens rea to charge him with first degree.

The issue here is that individuals knowingly destroyed evidence with the intent to obstruct investigations.

This issue is that they now have the tools to charge you with obstructing an investigation that hadn't even begun yet, when you took the action.

We all understand how this scenario is obstruction:

1. -Investigation Begins-

2. Police:We would like to see #source_of_potential_evidence.

3. Person:Sure thing. -deletes #source_of_potential_evidence-. Oh, sorry guys, I don't have that.

This is what happened:

1. Person:Oh, this doesn't look good. I don't think I want to keep this on my computer. -deletes #source_of_potential_evidence-

2. -Investigation Begins-

3. Police:We would like to see #source_of_potential_evidence.

4. Person:Sorry guys, I don't have that.

If there is not yet an investigation, it's not yet evidence. How can you be held responsible for destroying evidence if it's not yet evidence?

This isn't about maintaining the integrity of investigations. It's about giving prosecutors the ability to get people when they otherwise couldn't.

> as part of an effort to thwart a criminal investigation

Correction: a criminal investigation that didn't happen yet, might never happen, or might happen say 6 years from now.

And you'll be guilty regardless of whether this investigation targets you or someone you just happened to interact with. And regardless of whether the investigation results in other charges or not. And regardless of whether your potential evidence even matters in the investigation.

I don't think a government should hold such power over any person. SOX was targeted at corporations, the fact that it is used on other targets is a demonstration of how overreaching it is.

Combined with the alarmingly common practice of threatening innocent people with 20 year sentences until they plead guilty, this is a very dangerous precedent.

> Correction: a criminal investigation that didn't happen yet, might never happen, or might happen say 6 years from now.

I'd recommend reading the Indictment. This wasn't that sort of case. This was a case where the accused knew the Tsarnaev brothers, had communicated with them electronically, and made and received several phone calls to and from them after the Boston bombing and they'd been announced as suspects.

Under those circumstances, it was highly likely the FBI would come to him seeking evidence, and if the facts alleged are true, the defendant's behavior in this case looks very sketchy indeed.

This guy was scared that the FBI will come after him and decided that he didn't want to provide them with information that they would likely use to threaten him with 100 years of jail time regardless of his actual involvement.

Is that decision so exceedingly unreasonable that he needs to spend 20 years in prison for it? Keeping in mind that he has no obligation to create or retain the records that he deleted in the first place.

Mind you, I don't like this guy at all, and he does look sketchy as hell, but he is not even charged with knowing about the attacks. He is guilty of simply being afraid of the government.

And the worst thing is, most people don't even know that SOX applies to them as persons.

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