Cooper Download Questioned

Posted June 27, 2008 at 5:31pm

The House has apparently not been contacted by the FBI in regard to allegations that Rep. Jim Cooper (D-Tenn.) improperly downloaded documents from the Web site of a trade group he is investigating, and the trade group making the allegation could provide no independent evidence to support its blockbuster claim that the bureau is investigating the matter.

But legal experts said Friday that Cooper’s actions are in a murky legal area.

During a House Oversight and Government Reform Committee hearing Thursday about corruption and mismanagement at a Texas rural electric cooperative, Cooper said he downloaded documents from the National Rural Electric Cooperative Association’s “secret, password-protected Web site.” Cooper said the documents indicated deeper problems with electric cooperatives throughout the nation.

Former Rep. Glenn English (D-Okla.), who heads the trade group, replied, “NRECA counsel has advised me that Mr. Cooper is currently under investigation by the FBI for his unauthorized access and downloading of information from NRECA’s password- protected Web site.”

Cooper said in a statement after the hearing that English’s allegation of unauthorized access “is not true: I had full authorization, repeatedly, from a top co-op insider. That insider gave me their name and password to use for the website.”

Cooper’s spokesman called the allegation of an FBI investigation “a smear campaign.”

If the FBI had issued a subpoena for information from Cooper’s office, the House counsel would be required to announce the subpoena in open session on the House floor. No such announcement has been made, indicating that the FBI has not requested information from the House.

Cooper spokesman John Spragens said Friday, “We have been told that the FBI has not contacted any House officials about any records pertaining to Jim Cooper.”

NRECA, in a conference call with reporters Friday, could not provide independent documentation that Cooper is being investigated by the FBI. The association’s attorney, Nick Akerman, said he met with the FBI at his request to provide information about Cooper’s access to the Web site. He later sent out a clarifying statement explaining, “I conducted an internal investigation with the help of an outside computer forensics firm. We turned over the results of that investigation to the FBI. I have since had multiple contacts with the FBI responding to their requests for additional information.”

Akerman said if Congress wants to gather information for an investigation, it has the power to subpoena documents, but “any suggestion that access to this private Web site was part of a valid Congressional investigation — that in itself does not provide a legal right to steal documents that were drafted by association lawyers.” Akerman would not describe the documents that Cooper downloaded.

Orin Kerr, a professor at George Washington University and former lawyer at the Justice Department’s computer crimes section, said it is a crime to get unauthorized access to computer data, but “courts have not really settled what it means for access to be authorized.” Kerr said that “having a valid password is authorization; having a stolen password or guessed password is illegal … [but] exactly where the line is between the two is really unsettled.”

The legal issue is further complicated if someone gave Cooper access to a password, and Cooper then gave that password to others to access information from the Web site. Cooper published an article on electric cooperatives in a recent issue of the Harvard Journal on Legislation, crediting three of his Congressional staff members for providing research assistance, though it is not clear from NRECA’s allegations whether anyone other than Cooper was accessing the group’s Web site.

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, agreed that it is a murky area of law, but she said “there is a real danger in criminalizing” unauthorized access because the public has an interest in letting whistle-blowers publicize incriminating information. “If you define ‘unauthorized’ too broadly so anything the computer owner doesn’t like is unauthorized, then you are criminalizing a lot of activity,” Granick said. “You want there to be [access to] information that is relevant to the public debate.”

Even if Cooper’s access was unlawful, the Justice Department might have a hard time pursuing a case against him, given the constitutional protection against prosecution for Members of Congress involved in legislative activity.

Oversight and Government Reform Chairman Henry Waxman (D-Calif.) said: “Congressman Cooper has identified serious waste, fraud and abuse in the management of some electric cooperatives, which the Oversight Committee is investigating. The committee will vigorously pursue the allegations of wrongdoing by the cooperatives and will not be deterred by the antics of the National Rural Electric Cooperative Association. Congress needs more Members like Congressman Cooper who are tireless advocates for American taxpayers and consumers.”