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Comment by untog | Hacker News Reader

You don't have to feel bad for the victims - what they did was immoral, after all. But it wasn't illegal. And if we start cheering for moral brigades to leak data about perfectly legal actions, things get dark quickly.

Imagine a patient list for an abortion clinic. Now, I don't think abortion is immoral. But plenty of people do. And you can bet they'd absolutely leak that information, which could also ruin lives.

Basically, this is not a great precedent to set.

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Adultery is a crime and/or a tort in many jurisdictions worldwide. And I'm not just talking about places like Saudi Arabia - it's a crime in 21 US states, including New York and Massachusetts. Did Ashley Madison take any efforts to prevent access from jurisdictions where adultery is illegal? I doubt it.

I'm not defending the data leak. It is criminal, and two wrongs don't make a right. But you can't compare an abortion clinic, operating in a jurisdiction in which abortion is completely legal, to an organisation seeking to facilitate what is criminal and/or tortious behaviour in many of the jurisdictions in which it chooses to operate.

Mr. Felder, who is also a former federal prosecutor, said the criminal ban on adultery has no practical significance. “It’s a celebration of hypocrisy, with a nod of the head to religion over reality,” he said.

http://cityroom.blogs.nytimes.com/2008/03/21/is-adultery-a-c...

I think it's fair to say that - within the US at least - laws against adultery are leftover relics from another time. Apparently there is still a $25 fine for flirting in public on the NY books. As the article states:

About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)

Adultery is very much illegal, and actively prosecuted, in the US military. According to news articles, their customer database included thousands of .mil email addresses.

They didn't even make a token effort to deny access to email addresses belonging to a TLD whose controller criminalizes adultery.

If a law is on the books, and has not been found unconstitutional, then it is sitting there waiting for a prosecutor to use it. In 2004, divorce attorney John R. Bushey Jr. was criminally prosecuted for adultery in Virginia. The prosecution dropped the charges after he agreed to do 20 hours of community service - I understand primarily because the ACLU wanted to pursue the constitutionality of the law, and the prosecution didn't want the risk and expense of that. No conviction was recorded, but I'm sure it was a stressful experience for him, and the prosecution probably thought the stress well-deserved. Why wouldn't they do the same in the future?

No one knows whether laws against adultery are constitutional in the US. Some argue on the basis of Lawrence v. Texas they are not, but the US Supreme Court has never addressed that precise issue, and it could rule either way if it was ever presented with it.

Is an internationally-available Internet service running legally in its source jurisdiction obligated to prevent people from using it to break their local laws either legally or ethically?

Ethically, that depends on whose ethics you are talking about. Some people say we are ethically obliged (within reason) to obey the law, even if the behaviour the law prohibits is not in itself unethical - those people would likely say "Yes", at least in some cases. Other people deny that there is any ethical obligation to obey the law, except when the law's demands happen to be the same as those of ethics, so those people might answer "No".

Legally, the answer can be yes. If I commit a crime in country A, and you in country B help me, then you've likely committed a crime (as an accessory) under the laws of A too - even if B doesn't recognise my or your behaviour as criminal. Now, B will probably refuse extradition, but if you ever voluntarily come to A, you would be at the mercy of A's legal system.

Are there really any court sentences in the US, in, let's say, the last 20 years, for "helping somebody committing adultery?" How much a "helper" can get?

I don't believe so. But on the other hand, it's not like laws stop working if you don't use them.

Under Utah law, adultery is a class B misdemeanor (Utah Code 76-7-103), so conspiracy to commit adultery is a class C misdemeanour (Utah Code 76-4-202). So I think if a married person in Utah used the Ashley Madison website to arrange an affair, a Utah district attorney could justifiably charge Ashley Madison and/or its employees with conspiracy to commit adultery. Now, a class C misdemeanor, the maximum punishment is 90 days in jail (Utah Code 76-3-204), and a maximum fine of $750 for a natural person (Utah Code 76-3-301) and $1000 for a corporation (Utah Code 76-3-302) - so a DA might well decide it is not worthwhile. But, if they wanted to prove a point, I can't see why they couldn't bring the charges. Maybe if they had some personal connection to the affair; or maybe they might think the publicity would help their re-election campaign. Since Ashley Madison is based in Canada, I doubt Canada would agree to extradition - but if its employees or owners venture into the US, their extradition to Utah could be sought - intra-state extradition in the US is legally available even for misdemeanours. Now, if it all got this far, and further, the Supreme Court might decide laws against adultery are unconstitutional, but then again they might not decide that (or might refuse to hear the appeal). While I agree the story I'm telling here is somewhat unlikely to actually happen, I don't think there is anything legally impossible about it, and I'd call it somewhat unlikely rather than highly improbable.

But the info was stolen - so inadmissible, right? They're all safe because of this leak.

Evidence obtained illegally is only inadmissible if the illegal act was committed by a government agent. Evidence obtained through the illegal act of a private party is perfectly admissible. See Burdeau v. McDowell: https://supreme.justia.com/cases/federal/us/256/465/case.htm...

There's a great business model: a private company that hacks for the prosecutor in deserving cases. Probably make some good money, and do a public good!

SO, its only ok if its done for free? Or out of juvenile glee at hurting powerful people?

In a scenario in which a private actor, of its own volition and for its own reasons, decides to conduct a search, and then chooses to reveal the results of the search to the government, it is clear from Burdeau v. McDowell that evidence should not be excluded. But if a company's primary business was performing warantless searches for the government, paid for by the government and at its direction, I think it is very likely a court would find that private actor to be a government agent, and thus evidence collected should be excluded. If an arrangement exists for the primary purpose of evading the Fourth Amendment, many judges would disapprove of that and try to shut it down. But to my limited knowledge, this scenario has never been presented to a court.

Soooo, the funding has to come from somewhere else, I get it. How about a sort of kickstarter for hacking deserving people/organizations? Just brainstorming here.

> victims - what they did was immoral, after all

Can you really say that? See my other post here for questions.

Well, perhaps. As you said in your other post:

Do you still consider all these poor dastards as the big "sinners?"

This is exactly the problem - maybe I think they are. Maybe you don't. Maybe someone else thinks anyone that did so much as load up the web site deserves to go to hell. But that's why making judgements about leaking based on your personal morals is bad, bad, bad.

This actually happened: http://www.theguardian.com/world/2012/apr/13/bpas-hacker-jam...

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