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Although this may be a mere coincidence, religious theorists would lead you to believe that this could be taken as the evidence of a Divine Being, for the chances for randomness of this golden double entendre is so remote, it would defy statistical odds (I apologize in advance, as this post will be full of puns).  A member of Congress, married to Secretary of State Hilary Clinton’s long time aide, who happens to have the unfortunate last name of Weiner, has a picture of a semi-erect phallus hidden in boxer shorts tweeted to a 21-year old college coed, Gennette Cordova.  If it’s a hacker, then it is no coincidence, no miracle, just someone who thought it would be fun to mess with a congressman, without considering the possible consequences.  This does beg the question:  Was it Weiner’s wiener?

According to “The Fix“, Chris Cillizza’s political blog in “The Washington Post“, Congressman Weiner cannot state with certitude whether or not the picture was him.  Never-the-less, he denies posting the picture on yfrog, and tweeting it to the Seattle area journalism student.  He does admit that this incidence has affected him and apologized to the media saying “I am sorry I was a little stiff the other day” (No I did not make that up, obviously the Congressman would not be offended by the jokes in this post).

What are the legal implications of this type of activity?  First let’s assume that it can be shown that Congressman Weiner did send the picture:

Sexual Harassment

The possibility of a sexual harrasment complaint or cause of action is minimal.  First, there needs to be evidence that Weiner did in fact tweet the picture of his wiener.  Second, we need to look into the reltionship between Weiner and Cordova.  Sexual Harassment is the unwanted sexual advances, coercion, intimidation or bullying of a sexual nature, or the promise of reward for sexual favors.  Even if Congressman Weiner did tweet the picture, it is highly unlikely that the incident would “rise to the level” of sexual harassment because they both admit that they had never met each other.

Cyberstalking

Again, assuming that it can be shown that Weiner did tweet the pic, is it possible, but not likely, that the action could be deemed cyberstalking.  Cyberstalking is the use of the internet to threaten or intimidate an individual sexually, on a systematic basis; or the use of the internet to arrange a meeting with the intent of using the meeting to commit a sexual crime.  Whether or not this can be considered cyberstalking is dependent largely on whether or not it was systematic.  Since by all accounts, this was a one time incident, it is hard to prove that their was any systematic effort to harm Ms. Cordova, so it is unlikely that any cyberstalking occured.
Now, assuming the system was hacked, was causes of action could there be against the individual hacker?

Invasion of Privacy

Invasion of privacy is a sort of “supertort” that encompasses several different types of situation.  In this situation, two possible torts apply, each depending on whether or not it was Weiner’s weiner that it was tweeted.

If the picture was an accurate representation of the Member’s member, the most applicable type of invasion of privacy would be “public disclosure of private facts”.  This type of tort occurs when an individual reveals information which is not of public concern, and the release of which would offend a reasonable person.  In this case, the information revealed was the size, shape, and contours… well you get the picture.

The other type of invasion of privacy occurs whether or not the picture was or not of the Congressman, however it is more likely to occur if it was not a real picture.  This is the tort of “false light”.  False light occurs when an individual publishes information (in this case a picture), with actual malice, that places the individual in a false light, and would be highly objectionable.  Let’s assume that their was actual malice, and the picture is highly objectionable.  If the picture was false, it was likely that the circumstances surrounding the tweet, the fact that it was the congressman’s twitter account, still places the congressman in a false light.  If it the picture was real, this tort would apply if the information revealed was misleading.  For example, it would be misleading if it implied is that the congressman is a perverted sex maniac, or just a creepy guy.

Cybercrime

Outside the realm of tort, there is the possibility that a cybercrime occured, depending on the jurisdiction.  25 states and the District of Columbia considers it a crime if someone hacked into an account and distributed lewd content through the invasion of that account.  Here depending on where jurisdiction can be determined, the individual who hacked into the account and posted the picture that may or may not be of the Congressman, may have committed a cybercrime.

All of this rests upon whether or not the individual hacker can be caught.  Ms. Cordova has stated that she “knows who it is” who “hacked” into Weiner’s account.  This is a good step because twitter keeps accurate records of where tweets come from.  It should not take long for a computer forensic’s expert to determine the possibility as to whether or not the individual could have hacked into the account. At that point, simple investigative work involving obtaining a warrant and seizing the suspect’s computers could yield the evidence necessary to charge the individual with a cybercrime.

UPDATE! (6/3/2011) 10:30am

Jon Stewart and the Daily Show have their take on the scandal.

Update 6/7/2011 11:36am

Turns out it was Weiner’s Wiener.