United States v. Kernell
E.D. Tenn., October 7, 2008, No. 3:08-CR-142
On October 7, 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 17th, 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 . . . .
Professor Paul Ohm, of Colorado Law, believes that the breach of Gov. Palin’s e-mail account will be a “watershed event” in Internet privacy law. He notes that historically, privacy protection legislation follows on the heels of “sensationalized” privacy breaches. Furthermore, he predicts a “fierce First Amendment debate” arising from both Gawker.com and Wikileaks’ involvement in disseminating the hacked e-mail content.
Kernell, the son of a Democratic Tennessee state legislator, plead not guilty on Thursday, October 9th, and was released without bond. If convicted, he faces up to five years in jail and $250,000 in fines. Trial is set to begin December 16th.