Laremy Tunsil Hacker Could Face Up to 5 Years in Prison if Caught, Face Civil Liability

As video of Laremy Tunsil smoking marijuana from somewhere in his past emerged, and he slid down the draft further than expected, we forgot that he was a victim.

And that whoever did this–motivated by revenge, anger, or who knows what else–inflicted damage on him in what looks like a calculated manner, timing the release when it would hurt him the most. Teams, with 15 minutes to decide and something new blowing up as they are under that time demand, with millions at stake, will probably react differently than if they had a week to prepare and consider.

Whoever was behind that hack and release of the video and texts on draft night could face civil and criminal liability for their acts. Last night, Tunsil reportedly said he did not want to pursue charges, and we’ll see if that stance changes with time for advice, and to digest.

I spoke with Travis Crabtree, attorney with Gray, Reed & McGraw in Houston, Texas, specializing in online media and internet legal issues. Crabtree wrote about the potential civil and criminal liabilities arising out of the Tunsil situation here.

"Assuming someone hacked his Twitter or Instagram account, even if Tunsil was somewhat lackadaisical about protecting it, and that this person did not have “authority” to access the account, then there is likely a violation of the Stored Communications Act. The SCA makes it illegal for anyone to “intentionally access[] without authorization a facility through which an electronic communication service is provided or . . . intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorize access to a wire or electronic communication while it is in electronic storage in such system.” Accessing his Twitter or Instagram accounts without his permission would likely be a violation."

There are both civil and criminal components to the SCA. A person can face fines or imprisonment up to five years under the act if “the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain.”

In this case, someone motived by “malicious destruction or damage” may be at issue.

Having authorities such as the FBI investigating this as a criminal matter, like they did last year with the Cardinals’ employee hack of the Houston Astros, is a benefit if you want to pursue a civil case as well, says Crabtree. Forensic investigations can be expensive, and would otherwise be paid for by the injured party/plaintiff. It’s better to piggyback off an investigation that locates the source of the damage.

In this case, whoever was behind this likely left IP footprints that can be traced by forensic experts. Not only were there the postings on Tunsil’s Twitter and Instagram accounts last night, but Deadspin also reported that they got an e-mail in the weeks leading up to draft from someone trying to sell the smoking video.

Tunsil also has a pretty good claim for civil damages. The primary practical issue there–other than identifying the person responsible–is probably whether any judgement would be collectible.

The main question in these types of cases is whether the plaintiff had authority to access the accounts–someone he gave permission, or someone who manages his accounts. That is highly unlikely.

Even if Tunsil’s passwords were literally “password,” that wouldn’t matter, and so if Tunsil can show that the person did not have authority, he can proceed, and then the posting and timing during the draft would then go to the extent of his damages.

When I did a survey of mock drafts yesterday, none of the 20 I looked at from major publications had Tunsil going outside of the Top 6. The Ravens took an offensive tackle at #6, but went with Ronnie Stanley instead of Tunsil. The Tennessee Titans traded up to #8 as the draft unfolded, and took another tackle as well, Jack Conklin (were they motivated by being worried whether Conklin would get to them in light of the Tunsil fall?). Miami finally selected Tunsil at pick #13.

According to Spotrac, the 6th overall pick gets $20,484,331, with a signing bonus of $13,097,695. The 13th pick gets $12,457,650, with $7,260,109 in signing bonus. That equates to a difference of just over $8 million in total salary over the first four years, and $5.8 million difference in immediate signing bonus.

It’s likely that damages could be established. What is less certain is whether the defendant would have assets that would make it collectable.