Sarbanes-Oxley Act: Section 802

Section 802 is listed within Title VIII of the Sarbanes-Oxley Act(Corporate and Criminal Fraud Accountability), and pertains to ‘Criminal Penalties for Altering Documents’. [1]

According to Section 802-

1. “‘‘Whoever 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 or any case filed under bankruptcy, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.” [1]

2. “Any accountant who conducts an audit of an issuer of securities shall maintain all audit or review work-papers for a period of seven years from the end of the fiscal period in which the audit or review was concluded.” [2]

3. “Whoever knowingly and willfully violates the above (2.) shall be fined, or imprisoned not more than 10 years,or both. [2]

History and Context-

Section 802 of the SOX directly corresponds to the role and actions of the auditor Arthur Andersen LLP in the Enron scandal that shook the U.S. financial world in 2001 and 2002. During investigation, the auditor admitted to destroying and disposing of “a significant but undetermined number” of documents related to its work for Enron.

Arthur Anderson was charged and found guilty of “obstruction to justice” and the firm was put out of business.

Section 802 of the SOX Act thus came into being with the purpose having clear and detailed audit records available, to increase paper-work transparency, and ultimately in order to “increase investor confidence in the audit process and in the reliability of reported financial information”.

Browser history and Section 802

While Section 802 took birth to regulate auditors, and is still mainly used for compliance in the financial and auditing realm, some of its broader interpretations w.r.t technology and “obstruction of justice”, has made the legal world question if it is an “overreach of a law meant to hold corporations in check”. [4]

Case 1:
Phillip Russell, a lawyer from Connecticut, plead guilty to a SOX indictment of obstruction of justice, under Section 802, solely for destroying a client’s computer with evidence of child pornograpy in 2007. [4]

Case 2:
On the night of the Boston Marathon bombings, in April 2013, former cab driver Khairullozhon Matanov went out to dinner with his new friend Tamerlan Tsarnaev and the friend’s brother, Dhzokhar, the two perpetorators.
Believing he should be upfront about his association with the Tsarnaevs, Matanov went to talk with local police, and also agreed to be questioned by the FBI. When he arrived home, he deleted a few files and cleared the search history from his browser.
After more than a year had passed—without any evidence that he was involved in the bombings in any way—he was arrested and charged with obstruction of justice, for destruction of “any record, document, or tangible object” as found in SOX section 802. [4]

Case 3:
David Kernell was a student at the University of Tennessee, in 2008, when he broke into Sarah Palin’s email account, for which he was charged with a misdemeanor for unlawfully obtaining information from a protected computer. However, because he cleared his browser’s cache after doing so, Kernell was also convicted of a felony under Section 802, of SOX, for destroying evidence in a federal investigation. [4]