> Clearing one's cache/browser history is in many situations an automatic action
Article says "he doctored his browser history" which sounds less automatic.
Article says "he doctored his browser history" which sounds less automatic.
Or the writer could have been trying to introduce verbal variety and as a consequence ineptly misrepresented what happened. The link[1] immediately after "doctored his browser history" only mentions "deleting files/data" and "reformatting":
[1] https://www.bostonglobe.com/metro/2014/05/30/timeline-allege...
SOURCE: http://www.justice.gov/sites/default/files/usao-ma/legacy/20...
It states (item 40), paraphrased, that he deleted his internet cache and also browsing history selectively, which was used to reason that he was attempting to hide his philosophical similarities with the brothers.
I take issue with item 43:
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By deleting his Internet cache and other files, MATANOV obstructed the FBI’s determination of his Internet activity during the night of April 18 and the day of April 19, 2013, and the extent to which he shared the suspected bombers’ philosophical justification for violence, among other topics of interest. MATANOV’s deletions have thus obstructed the FBI’s investigation of the bombings and the suspected bombers, and have caused the FBI to expend considerable additional resources during its investigation of the bombings and the suspected bombers.
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This man is clearly guilty, and the other evidence is damning. That said I cannot ever see validity in the argument that clearing history of access to publicly-accessible records online definitively indicates obstruction, or "malicious intent." Localized browsing history should be considered more ephemeral than user-stored files, because otherwise where is the line drawn? Could you be charged in 2018 for not leaving your computer in a cold enough climate for encryption keys to be recoverable from RAM? Possibly, because without those you'd cause the FBI to "expend considerable additional resources during its investigation."
I say this because the application of that reasoning doesn't discriminate between individuals actually trying to defraud (e.g., this gentleman) and those who are privacy conscious. It has chilling and unintended consequences, and those shouldn't be ignored when the case can absolutely be made without this assertion.
But it does. If you're legitimately purging your browser history because you're privacy conscious, you're almost certainly going to have it performed in some sort of automated fashion. Maybe you have the browser purge those things on shutdown. Or you have an extension that nukes things older than 24h. Or, worst case, hopefully you have some way of demonstrating that you do this on the regular, by hand (but that still might not cover you, truth be told).
Doing it one-off is a completely different matter, legally speaking.
See my reply elsewhere in this subthread for an analogous situation involving company financial records. [1] Nutshell: if you don't want to be prosecuted for obstruction of justice or destroying evidence, you have a standing, documented, and meticulously followed document retention policy, under which you're shredding things on the regular.
There is unambiguous, and well-settled precedent (and probably also statute, but I'm too lazy to look it up) to this effect. There is no new legal ground being broken here whatsoever.
They were looking to create a case for philosophical sympathies and they found evidence of that in both his statements and direct actions. That would be enough to charge him, and yet they've chosen to specifically juxtapose his internet browsing history (and deletion thereof) with "[causing] the FBI to expend considerable additional resources during its investigation." As you said they either recovered the files directly, or else subpoenaed the ISP, and neither could be said to take "considerable effort."
They're saying that because he viewed certain videos and pictures (publicly available) online, he must be a sympathizer. I'm saying, yes he's a sympathizer (and deserves prosecution) but his browsing history online should not be a legally valid justification. Unless you want to sweep up journalists & whistleblowers in the process... Even copyright defendants (thanks to the TPP), if the hypothetical owner of defecatingdwarves.us were to demand criminal charges be brought against a cyberlocker illegally streaming their videos, and you just happened to delete the history entry from your recent visit which the plaintiff decided to treat as "evidence."
This case isn't creating a precedent, but it's the first time I have seen federal prosecutors use this rationale and it's concerning. I personally don't think deleting your browsing history alone--even selectively--warrants a potential 20yr federal sentence.
Also, nobody under investigation has to implicate itself?
If you play postal, and one of the guys you have smoke breaks with runs amok - deleting that game from a "new philosophical viewpoint" makes you guilty?
The problem is, that law tryies to mindread here in the end. Which they can not. There is a diffrent between rhetoric and action.
That makes the action (assuming it was done with intent to destroy the evidence, and not merely an automatic, "quitting the browser purges its history" type thing) illegal.
Consider the analogous situation of two companies, both engaged in illegal activities:
Company A has a standing, published document retention policy that says that all financial records must be destroyed after 30 days.
Company B has someone sneaking in at night to shred the records of their profits from selling meth to schoolchildren.
The Feds have copies of both of their records, because they have someone on the inside copying them and turning them over.
One company's relevant employees are going to face one set of charges. The other's are going to face two. Can you guess which is which?