The absence of evidence shouldn’t be viewed as proof of guilt, but tell that to the U.S. federal court—where Khairullozhon Matanov will be facing sentencing next week for deleting his browser history. Though he wasn’t an accomplice in the Boston bombing and no one is charging him with the crime, the FBI claims that the friend of the Tsarnaev brothers obstructed evidence in the case.
Deleting your browser history could land you 20 years in prison
The absence of evidence isn't proof of a crime.
That evidence includes now-deleted entries in his browser history along with videos, and he’s not the first person to face charges in a similar situation. This is a disturbing trend when it comes to how the federal government views the Internet and information technology.
Instead of being a resource for readily available information that citizens can access at will, the Internet is becoming a tool for spying on citizens and residents of the United States. People no longer enjoy the explicit right to privacy that would protect them from warrantless wiretapping and seizure of Internet records. As Matanov’s case illustrates, they’re also not entitled to the legal protection of being allowed to have control over their own browser history and private records.
In an interview with the Nation, the Electronic Frontier Foundation’s Hanni Fakhoury observed: “The idea that you have to create a record of where you’ve gone or open all your cupboards all the time and leave your front door unlocked and available for law enforcement inspection at any time is not the country we have established for ourselves more than 200 years ago.”
However, that’s precisely what’s happening in this case.
He’s been charged, as have others in cases like his, under the Sarbanes-Oxley Act. SOX, as it’s known, was a direct response to the corporate abuses of firms like Enron, which destroyed untold accounting records and documentation to avoid culpability for federal crimes. Under the law, people are required to preserve any evidence they knowingly believe could be used in future investigations, even if no such investigation has been launched.
This is where Matanov runs into trouble. After the bombing, still not knowing who was responsible, he met up with the Tsarnaev brothers for dinner. His roommate testified that Matanov expressed some troubling beliefs about the bombing at some point after this meeting—like the belief that it might have been justified under his personal interpretation of Islam. It took him several days to learn who was involved.
Clearly suspecting that the situation was about to get ugly, and likely in a panic, he doctored his browser history just days after the bombing and deleted videos that betrayed his relationship with the two brothers and the type of material they liked to watch together in social settings, which often included violent and disturbing videos. Without SOX, this would have been a personal matter, but under the law, prosecutors argued that he made a conscious choice to destroy materials he knew could be used in a future investigation.
This series of events explains how Matanov found himself pleading guilty to four charges of obstruction of justice on advice from his attorneys, for which he may be facing up to 20 years in prison. The case further backs up an extremely disturbing existing precedent: Under SOX, it could theoretically be argued that no one’s browser history is private, which is clearly absurd.
There are numerous entirely legitimate reasons to turn private browsing on or opt to clear history. For example, many people prefer to research medical problems privately to protect their privacy. Young people looking for sexual health resources often clear their history to avoid attracting attention from their parents, as do those looking for help with sexual or physical abuse. A partner buying a present for someone might want to avoid ruining the surprise.
Enumerating reasons for the legitimate usage of private browsing or deleted records, however, is beside the point: Privacy is a fundamental right in the United States, and people don’t need to justify how they use their computers. If instructed to preserve anything that could be considered evidence in a federal investigation, people are effectively backed into a corner, guilty until proven innocent. Individuals are not evidence preservation specialists, and they shouldn’t be held responsible for clinging to every possible scrap of data that might someday be useful in federal cases.
If a friend is murdered and authorities determine the case is federal in scope, are past emails potential evidence into the investigation of her death? Do you know where the letters you traded with her in college are? Is correspondence with your personal accountant suddenly evidence, if she’s indicted in a federal case that has nothing to do with your business interactions?