"The relevant federal standard, IIRC, is 'unauthorized access' - technical barriers such as encryption can be circumstantial evidence of restricted authority to access, but are not required."
Well, instead of relying on one's fallible memory, let's review the relevant statutes. Namely, USC 18.I.47.1030, "Fraud and related activity in connection with computers."
§ a(1) would be your closest bet to the "no technical barriers necessary" claim, but it applies only to espionage.
§ a(2)(B) comes close, but the documents weren't from a department or agency of the government; they're party papers. If they were congressional busines, they'd be protected by this one, but then the staffer would probably have access to them anyhow.
§ a(3) doesn't work either. The file share was apparantly not non-public, "computer glitch" or no.
Reading the statute, it seems the general theme is that government information is illegal to access without explicit authorization, regardless if there's protection. However, non-government stuff is only protected by the law when it's related to financial and other related records, or if there is a protection mechanism in place. Again, these papers are not government business, they are party business.
A totally unprotected document can be confidential.
Indeed, but let me repeat an important point: a document's being thought of as confidential does not give it any legal protections. The documents in question, by themselves, are completely legal to distrubte. They are not official senate business, nor are they classified. They are party strategy papers. Hence, the only protection against their being distributed is how well they are physically protected by those who wish to keep them confidential.
If these documents were dropped in the hallway by a democratic staffer and a republican staffer were to pick them up, go "hmm, this is interesting" and hand it to his friendly news reporter, that would not be illegal at all. It would have been dumb of the democratic staffer, but the republican's actions would be perfectly legal.
Going one step further, if said democratic staffer were a moron and posted said documents to his senator's website and some republican staffer read them there and said "hmm, this is interesting," printed them off and gave them to his friendly news reporter, that would also not be illegal. It was moronic of the democratic staffer, but again, the republican did nothing wrong.
Now, if said democratic staffer weren't necessarily a moron, but yet not too bright when it comes to computers, and posted the documents to a public share on a file server, and some republican staffer stumbled upon them there and said "hmm, this is interesting," printed them off, and gave them to his friendly news reporter, that would also not be illegal. It was stupid of the democratic staffer, but again, the republican did nothing wrong.
In industry there is a legal mechanism called the "trade secret." Basically, if a company makes a good-faith effort to keep sensitive informaiton private, that information is legally protected from distribution by someone who obtains it illegally. If there is no effort made at securing the information, there are no legal protections for the documents.
Regarding the documents in question here: there was no effort made at securing them, therefore there are no legal protections for them. Does what the republicans did with them look bad? Absolutely, incredibly. Do I like what they did with them? Not at all. Do I like republicans in general? Not usually. Were their actions in this case illegal? Not really.
One last thing: "A staffer pilfered internal memos not meant for his eyes, and passed them out to mouthpiece media sources in order to selectively embarass their political enemies."
Welcome to politics.
In the beginning the universe was created. This has made a lot of people angry and been widely regarded as a bad move.
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