On February 25, 2015 the United States Supreme Court rendered the unremarkable decision that a fish – yes, a fish – is not a computer hard drive.  Sure, you can buy thumb drives in the shape of sushi.

To anyone but a lawyer, that would be obvious.  Not so when you get Congress involved.  At issue was a criminal obstruction of justice law which made it a crime to, “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States…”

A plain reading of that law by human beings leads to the conclusion that you can’t create false records in books and records, computers, data entry, etc. in order to obstruct justice.  But you read it that way cause you’re a person.  Not a lawyer.

Thar She Blows

John Yates was a commercial fisherman fishing on the Miss Katie for red grouper in the waters in the Gulf of Mexico.  The Coast Guard suspected that the fish he was catching were under-sized (and therefore illegal) and forced his boat ashore for inspection.  As the boat followed the cutter, Yates returned his catch to whence it came – throwing the mini Grouper back into the sea.  When he arrived for inspection, all his ducks (well fish) were in a row.  No guppies here.

The authorities were not amused.   They prosecuted Yates for obstruction of justice.  More particularly, the prosecuted Yates for a violation of the post-Enron provisions of the Sarbanes-Oxley Act of 2002, the same set of laws that require (well, kinda) financial services companies to have privacy and security policies.   The statute was intended to make companies like Enron and Arthur Anderson have accurate books and records, and not to put them in the shredder when the feds come around.

The government argued that the law made it a crime to “destroy … any… tangible object… with the intent to… obstruct… an investigation…” Why its clearly a violation!  Words don’t lie.

The Supreme Court cried “foul.”  Well, fish or fowl.  They noted “A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.”  As Justice Alito said in concurrence, “the term “tangible object” should refer to something similar to records or documents.

A fish does not spring to mind—nor does an antelope, a colonial farmhouse, a hydrofoil, or an oil derrick. All are “objects” that are “tangible.” But who wouldn’t raise an eyebrow if a neighbor, when asked to identify something similar to a “record” or “document,” said “crocodile”?”

We really need to know more about Justice Alito’s neighbors, I think.

Now lawyers have incredible powers.  In one famous Canadian case, they turned a horse into a bird. At least for regulatory purposes.  In another, the Court questions whether Swans were birds.  But that’s a horse of a different color.

The important thing for CISO’s and security people about the most recent Supreme Court case is that words – and regulations, laws, contracts, etc., are malleable.  As Lewis Carroll’s Humpty Dumpty pointed out, ““When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’’ The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.””

In this case, the Supreme Court had the last word.   As Supreme Court Justice Robert Jackson said about the Court in 1953, “We are not final because we are infallible,  “but we are infallible only because we are final.”  And that’s the last word.

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