JOLT Digest

Palin E-mail Hacker Indicted on Federal Charges by Tennessee Grand Jury
By Andrew Ungberg –- Edited by Jon Choate

United States v. Kernell
E.D. Tenn., October 7^th, 2008, No. 3:08-CR-142
Indictment

On October 7^th, 2008 a Tennessee grand jury charged David C. Kernell with violating 18 U.S.C. § 2701 (part of the Stored Communications Act) and 18 U.S.C § 1030(a)(2) (a subsection of the Computer Fraud and Abuse Act) for allegedly accessing the Yahoo e-mail account of Alaska Governor Sarah Palin, the Republican vice-presidential nominee, without authorization. Images and information from Gov. Palin’s e-mail account first hit the Internet on September 17^th, and began making headlines shortly thereafter. Several websites, including Wikileaks.org and popular blog network Gawker.com, posted screen shots and content from the hacked e-mail account.

Professor Orin S. Kerr, of the George Washington University Law School and the Volokh Conspiracy blog, sees a potential problem with the indictment. He notes that in order to charge the case as a felony, the government must claim Kernell accessed the account “to further criminal or tortuous activity.” According to Kerr, however,

[T]he indictment doesn’t exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was “in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section 1030(a)(2)” But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself . . . .

Info/Law draws parallels between this case and the Lori Drew MySpace case.

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District Court Compels Disclosure of YouTube User Logging Records, Protects Source Code
By Jay Gill — Edited by Sarah Sorscher

Viacom International, Inc. v. YouTube, Inc.
S.D.N.Y., July 1st, 2008, No. 07 Civ. 2103
Order (Provided by Justia)

The District Court for the Southern District of New York partially granted a discovery motion made by Viacom in its copyright suit against YouTube and YouTube’s parent company Google. The order compels Google to produce the contents of YouTube’s logging database, including the login IDs, IP addresses, and viewing information of YouTube users. The court denied Viacom’s motion to compel production of the protected source code for the Google search engine.

Viacom’s complaint alleges that YouTube is directly or vicariously liable for duplication of copyrighted material on youtube.com, and seeks damages of over $1 billion and injunctions against further infringing conduct.

Wendy Seltzer at the Citizen Media Law Project summarizes the bifurcated outcome of the case: “trade secret wins; privacy loses.” Kurt Opsahl of the Electronic Frontier Foundation calls this a “setback to privacy rights,” and argues that some of the login names and IP address information, which the court states are anonymous, can in fact be used to identify individual users.
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Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

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