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Did the Washington Post Violate the Electronic Communications Privacy Act? (MD4Bush)
NRO ^ | 11/10/05 | Stephen Spruiell

Posted on 11/10/2005 2:29:24 PM PST by Republican Red

Did the Washington Post Violate the Electronic Communications Privacy Act? 11/10 05:24 PM For those of you who have been following the MD4Bush story (if not, click on the links at the bottom of this post to catch up), here's a little breaking news: Free Republic is looking into whether the Washington Post violated the Electronic Communications Privacy Act when Post reporter Matthew Mosk accessed the Free Republic account of MD4Bush.

According to the Post's statement on the matter, Mosk was given MD4Bush's sign-on information by "someone acting on MD4Bush’s behalf." He then used that screen name and password to log into MD4Bush's account and view private e-mails sent between MD4Bush and former Maryland state official Joseph Steffen.

According to the Electronic Communications Privacy Act, anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided; or... intentionally exceeds an authorization to access that facility" is committing a crime. In this case, the Post claims it had authorization to view the private e-mails because it was given the password by "someone acting on MD4Bush's behalf."

There are two problems with this defense. First, how could the Post have known that this "someone" was really "acting on MD4Bush's behalf"? Free Republic spokesman Kristinn Taylor gave me the following example:

Imagine if I gave you the keys to someone's house and I said, 'If you go in this house, you'll find something newsworthy. Oh and trust me, I know the guy whose house this is, and he wants you to go in there.' Regardless of the legal questions, that certainly wouldn't be ethical. Yet that's exactly what Mosk did when accessed a total stranger's Free Republic account and viewed that account holder's private correspondence. To compound that ethical lapse, Mosk did not report these actions in his stories about Joseph Steffen. He merely alluded to "private e-mails, which were given to The Washington Post."

Second, even if the Post could prove that Mosk had MD4Bush's consent to log into his private account, that wouldn't be enough to exempt the Post from the Electronic Communications Privacy Act. That's because each Free Republic user agrees to terms of use, one of which is that the user will not give out his password. In other words, MD4Bush was not authorized to give Mosk permission to use his password — as the other party to the user agreement, Free Republic's consent was required also.

Taylor told me that Free Republic is looking at its options and considering legal action against the Post. Up until now, Free Republic has not released much information about the identity of MD4Bush, other than to say that his account was associated with the mddems.org web domain (not an mddems.org e-mail address, as this otherwise informative Washington Times piece reported today). But since it's now clear that MD4Bush violated his user agreement, Free Republic is considering whether he forfeited his confidentiality.

That Free Republic might go public with the name has the state Democratic Party on the defensive. This week, WBAL in Baltimore reported that the co-chairman of the Maryland Democrats, Keiffer Mitchell, has called for an investigation into whether the state party was involved in the MD4Bush affair, calling MD4Bush's tricks, "despicable" and saying an investigation was needed to "clear the air."

Unfortunately, the Washington Post has not shown a similar desire to shed light on its own role in assisting MD4Bush in his political hit on the governor of Maryland. The Post maintains that it does not know the identity of MD4Bush, but it has refused to name the "someone" who gave Mosk MD4Bush's sign-on information. In the interest of avoiding a criminal investigation, it might behoove the Post to come clean.


TOPICS: Breaking News; Crime/Corruption; Free Republic; Government; Miscellaneous; News/Current Events; Politics/Elections
KEYWORDS: ecpa; md4bush; ncpac; wapo; washingtoncompost; wp
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Many links in the body of the story plus more links to releated articles - for those interested.
1 posted on 11/10/2005 2:29:25 PM PST by Republican Red
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To: Republican Red; Jim Robinson

Thanks for posting this.


2 posted on 11/10/2005 2:32:16 PM PST by Grampa Dave (MSM pseudo reporters use "could, may, and might" when they are lying and spinning.)
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To: Republican Red

This story is starting to grow more legs.


3 posted on 11/10/2005 2:32:29 PM PST by Cicero (Marcus Tullius)
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To: conservative in nyc

fyi and ping list


4 posted on 11/10/2005 2:33:10 PM PST by Grampa Dave (MSM pseudo reporters use "could, may, and might" when they are lying and spinning.)
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To: Cicero

This is going to be the Post's Rathergate before it is done.


5 posted on 11/10/2005 2:33:24 PM PST by Dems_R_Losers (The Kerry/Lehane/Wilson/Grunwald/Cooper plot to destroy Karl Rove has failed!)
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To: HAL9000

I think you were the first to bring up this potential law breaking event by the Compost.


6 posted on 11/10/2005 2:34:04 PM PST by Grampa Dave (MSM pseudo reporters use "could, may, and might" when they are lying and spinning.)
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To: Grampa Dave

Outstanding!


7 posted on 11/10/2005 2:34:59 PM PST by Anti-Bubba182
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To: Republican Red
It might be good time for everyone to check their mutual funds to see if they are invested in the Compost.


8 posted on 11/10/2005 2:36:18 PM PST by Grampa Dave (MSM pseudo reporters use "could, may, and might" when they are lying and spinning.)
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To: Republican Red
The Post maintains that it does not know the identity of MD4Bush, but it has refused to name the "someone" who gave Mosk MD4Bush's sign-on information.

---

How do you know who "someone" IS without knowing who that someone IS and still give them info that is clearly in violation of the law? :-\

9 posted on 11/10/2005 2:38:01 PM PST by NormsRevenge (Semper Fi ... Monthly Donor spoken Here. Go to ... https://secure.freerepublic.com/donate/)
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To: Cicero

NRO got involved a few days ago. Spruill and K-lo seemed to be very interested.


10 posted on 11/10/2005 2:38:11 PM PST by Republican Red (Mary Jo Kopechne could not be reached for comment.)
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To: Republican Red
MIDI - LAST KISS

He thought that he'd play a dirty trick
The guy thought he was really slick
The Maryland gov he had been planning to nail
The strategy was brilliant, and there's no way that he could fail

He had logged on and signed up for FReeperville
The rush it gave him was a thrill
His subterfuge was a game
Steffen's set up, and he'd take the blame
They had discussed an O'Malley affair
The Mayor said there's nothing there
Perhaps his wife's not Number One
Those wascally Wepublicans

Oh where, oh where is MD4Bush
We'll be kicking his worthless tush
He thought he'd fool us and that he was so great
But just like Mapes and Rather there's a lesson he learned too late

Steffen got the axe and MD's riding high
He thought he had been so very sly
Ehrlich's hurt, O'Malley's polls would rise
Unknown to them, they would get a surprise
The brilliant plan would soon become undone
Do not mess with Mr. Robinson
A trail was left that led back to the Dems
It's not surprising that it had been them
Time to admit all the mischief that you wrought
MD4BUSH, now you've been caught

Oh where, oh where is MD4Bush
We'll be kicking his worthless tush
He thought he'd fool us and that he was so great
But just like Mapes and Rather there's a lesson he learned too late

He's in hiding now...poor MD4BUSH
He'll wet his pants and how...we will kick his tush
He's gone in hiding now...poor MD4BUSH
He'll wet his pants and how...we will kick his tush

11 posted on 11/10/2005 2:40:45 PM PST by doug from upland ("Susan Estrich...get off your kneepads" - Juanita Broaddrick)
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To: Dems_R_Losers

They should have learned from Rather. The longer they wait, the worse it gets. If they had any sense, they'd have fired the reporter responsible long since and cut their losses. But it's too late for that now.


12 posted on 11/10/2005 2:42:42 PM PST by Cicero (Marcus Tullius)
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To: Republican Red

This is getting to be fun. Long-run popcorn item...


13 posted on 11/10/2005 2:44:31 PM PST by Uncle Miltie ("Avoid novelties, for every novelty is an innovation, and every innovation is an error. " - Mohammed)
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To: Republican Red

Yes, but this is a much longer article, isn't it?

The Washington Times ran an article too, which is linked in the NR article. But they still got one thing wrong, namely that Steffen was drawn by MD4BUSH into spreading rumors. Steffen never spread any rumors, contrary to the Post, and that now seems to be true of the private emails as well as the public threads. All Steffen said is "don't go there," or words to that effect.


14 posted on 11/10/2005 2:46:07 PM PST by Cicero (Marcus Tullius)
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To: Republican Red

Sue! Sue! Sue!


15 posted on 11/10/2005 2:55:17 PM PST by Sir Gawain
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To: All
Below is the relevant section of the law and the Registration and User Agreement.

Unlawful Access to Stored Communications 18 U.S.C. 2701.

"§ 2701. Unlawful Access to Stored Communications

(a) Offense.--Except as provided in subsection (c) of this section whoever–

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. "

Registration and User Agreement

"User Account Confidentiality: User agrees to protect user's account and password and not to disclose account information to any third party."

The WP did exceed an authorization to access FR by using anothers password(Forbidden under the Users Agreement which govern the access of users) to access FRmails and did not make any attempt to determine the rules of access to FR or presumably they would not have improperly used anothers password. They flat did violate section 2b of 18 U.S.C. 2701 in that they did not view, or observe the rules if they did view them. If the reporter was unaware of 2b of 18 U.S.C. 2701 it won't help. A professional at a large newspaper should know or should have asked.

The article additionally points out that for Mosk to legally use the MD4Bush account he would have needed to get the permission of FR first, which he certainly did not. The only other way legally is if Mosk was MD4Bush, which I doubt.

16 posted on 11/10/2005 2:58:59 PM PST by Anti-Bubba182
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To: NormsRevenge

"How do you know who "someone" IS without knowing who that someone IS and still give them info that is clearly in violation of the law? :-\"

First of all, we must define the definition of "is".


17 posted on 11/10/2005 3:01:44 PM PST by Grampa Dave (MSM pseudo reporters use "could, may, and might" when they are lying and spinning.)
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To: Grampa Dave

I knew someone would catch the inference of the word IS. ;-)


18 posted on 11/10/2005 3:03:09 PM PST by NormsRevenge (Semper Fi ... Monthly Donor spoken Here. Go to ... https://secure.freerepublic.com/donate/)
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To: Republican Red

Still trying to find a concise comparison/contrast of MD4BUSH/Jeff Gannon fiascoes to forward to my libby friends. (And for my own education) Anyone?


19 posted on 11/10/2005 3:03:28 PM PST by sam_paine (X .................................)
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To: Republican Red

Looks like WaPo has got itself deep in the do do.


20 posted on 11/10/2005 3:06:56 PM PST by advance_copy (Stand for life, or nothing at all)
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