Not a given that Cardinals' alleged hacking would be criminal act

Federal agents and prosecutors are investigating whether St. Louis Cardinals officials hacked into a Houston Astros database that included secret information about trades, player statistics and prospect evaluations. The investigation raises questions about the possibility of criminal charges.

Q: Is it actually a crime to hack into the data and the files of a Major League Baseball team?

A: It's certainly ethically questionable, but whether it is a crime is far less certain. It appears that Cardinals' front office officials succeeded in obtaining information on Astros prospects and trade strategies. But for a federal prosecutor to charge Cardinals executives with "unauthorized access" to computer information or theft of proprietary, non-public information, the prosecutor must be able to show that the information was the work product of significant efforts by Astros officials and, more importantly, was not available elsewhere.

In addition to showing that the stolen information was not otherwise available, the prosecutor must be able to show that Cardinals executives knew they were committing a crime. If the Cardinals' activity was just a dirty trick or an attempt at getting even with a former colleague, the hacking might not qualify as a crime. The prosecutors will face a difficult decision when they decide whether to file charges or, instead, decline to prosecute. It is easy to envision a federal prosecutor deciding that there are more important cases to prosecute.

Q: Doesn't the FBI have responsibilities that are more important than policing the actions of rival baseball teams?

A: Yes. It is difficult to imagine that FBI agents charged with the duty to investigate terrorists, syndicate hoodlums and corporate pirates would invest significant time in analyzing the activities of MLB executives and their evaluations of draft picks, prospects and opposing players. It has long been a part of baseball that general managers try to outmaneuver each other in the draft, in trades and in the signing of free agents. Hacking into the Astros' files is only the latest technique in the battles that help make the MLB fascinating.

During the steroids investigations and prosecutions, it became apparent that the federal courts were not interested in what many in MLB thought was serious cheating. After he was convicted for lying about his use of performance-enhancing drugs, Barry Bonds was sentenced to 30 days of home confinement in his Los Angeles mansion. It was a clear signal from a federal judge that cheating in baseball was not as important as many thought it to be. The conviction was later reversed, yet another indication that the courts did not want to be involved in these situations. If steroids were not important enough to capture the attention of the court system, then hacking into personnel files might not qualify for federal prosecution.

Q: What will happen to the Cardinals' executives who hacked into the Astros' database?

A: If the feds pass on a case, then the only discipline they will face will come either from Cardinals ownership or from MLB commissioner Rob Manfred. The conduct of the executives would certainly be unseemly, if it is proven. It might be a good idea for Cardinals ownership to suspend anyone involved for a month to show that they are embarrassed about what appears to border on unethical behavior. Manfred might want to issue some discipline to avoid any copycat efforts by other teams. Overall, the circumstances are unique: The Cardinals might have used a list of passwords former Cardinals executive Jeff Luhnow brought with him to the Astros. It is a situation that is not likely to be repeated.