October 13, 2008
Law Professors Raise Questions About Case Against Palin E-Mail Hacker
David Kernell, a University of Tennessee student and the son of a Democratic state legislator, was indicted this month on charges that he had hacked into the e-mail account of Republican vice-presidential candidate Sarah Palin. Mr. Kernell has pleaded not guilty.
Now some legal scholars are wondering how the charges against Mr. Kernell were raised to a felony — from a misdemeanor — which carries a maximum sentence of five years in prison and a $250,000 fine.
“In order to charge the case as a felony rather than a misdemeanor, the government needed to claim that the intrusion was committed to further criminal or tortious activity,” writes Orin S. Kerr, a professor at George Washington University’s law school who specializes in computer crime.
But the indictment against Mr. Kernell doesn’t state any other criminal activity that he was trying to engage in by accessing Ms. Palin’s e-mail, explains Mr. Kerr. “It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime,” he writes.
Paul Ohm, an associate professor of law at the University of Colorado at Boulder who also specializes in computer crime and information privacy, wrote in a blog posting that the indictment was “strange, strange, strange.”
“Surely, the government doesn’t mean Kernell deserves the felony because he obtained information from Palin’s account in furtherance of obtaining information from Palin’s account!” Mr. Ohm writes.
Eric Kelderman | Posted on Monday October 13, 2008 | PermalinkComments
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As usual law professors talking to hear themselves because no one else listens to them. I put in my time with boring professors just to get in line to take the bar exam. If theese professors were real lawyers they would not be professing to much.
— fred douglas Oct 13, 03:00 PM #
Fred, if you’re an attorney, or even an aspiring one, I’ll eat McCain’s shorts.
— diogenes Oct 13, 03:32 PM #
Fred needs to learn how to spell, as well as think. This is just more of the Rovian politics of fear rearing its ugly head…again.
— ds Oct 13, 04:46 PM #
Imagine if this had been done to Obama’s email account. These same far left, and tiresome, professors would be calling for prosecutorial blood – felony charges for hacking in furtherance of 1) tortious or criminal activity (i.e., they would merely assume that the little dear had intended to do harm to The Obama), and 2) charges for a hate crime. In truth, this action against Palin was both in furtherance of a scurrilous attempt to harm Palin’s reputation (tortious activity), and a hate crime (criminal activity). But wait: activities of hate against conservative female politicians is just fine, isn’t it. I wish these professors of law would go back to professing legal theory in the classroom because, of the real world, what they know could fill a thimble.
— Robert Oct 14, 09:53 AM #
Free Barabas!!
— ds Oct 14, 10:52 AM #
They may be of the sort that would call for revenge only when their person is wronged, but I’m not. The tortious activity connection is pretty tenuous in both fact and in constitutionality (unconstitutionally vague). As for the hate crime issue, that’s also pretty darn tenuous since slander is neither eligible for a hate crime enhancement under federal statute (to my knowledge) and is quite difficult to prove since in the case of a public figure actual malice must be proven.
I think this is a case where the public standing of the victim of the crime is generating outrage disproportional to the actual crime. To put it in other terms, why should the perpetrator of a crime against Sarah Palin (or Obama) receive a harsher penalty than the perpetrator of the same crime against an ordinary citizen?
— JS Oct 14, 05:20 PM #