Palin hacking charge flawed, lawyers say

Case considered a misdemeanor offence not a felony.

David Kernell is facing five years in prison for allegedly hacking into Alaska Governor Sarah Palin's Yahoo e-mail account, but lawyers watching the case say that the felony charge against him is a bit of a stretch.

That's because under the 1986 Computer Fraud and Abuse Act the crime that Kernell is accused of -- illegally accessing a protected computer -- is considered a misdemeanor offence, unless it was committed in order to pull off another crime. Then it becomes a felony.

Kernell, from Knoxville, Tennessee, pleaded not guilty in federal court Wednesday and was released from custody on the condition that he stay away from computers, according to a local report.

The problem with the case, lawyers say, is that the U.S. Department of Justice indictment handed down Tuesday uses circuitous logic. It essentially accuses Kernell, the son of Mike Kernell, a Democratic state representative from Memphis, of illegally accessing Palin's e-mail, in order to... illegally access e-mail.

"It's a very convoluted way to try to deal with this issue," said Mark Rasch, managing director of FTI consulting, and a former DOJ attorney. He added that if the DOJ's argument is accepted by the court, it would invalidate the law's provision for charging this crime as a misdemeanor.

Marc Zwillinger, a partner at Sonnenschein, Nath & Rosenthal agreed with Rasch's assessment. "I've never seen it pled like this before. I think it's totally inconsistent with the stature," he said. "This is just strange."

Kernell was indicted Tuesday by a grand jury in U.S. District Court for the Eastern District of Tennessee in Knoxville.

The felony charge greatly increases Kernell's prospective jail time. He now faces a maximum of five years in prison. Under a misdemeanor, the maximum sentence is just one year.

With the stronger charge, federal prosecutors may be hoping to pressure Kernell into pleading guilty to a misdemeanor, said Orin Kerr, a law professor at George Washington University. Or they may be planning to amend their charges later to better explain what kind of other crime they believe Kernell committed, he said in an interview.

As things stand, however, the government's argument seems flawed, Kerr said.

The DOJ declined to comment on its thinking behind these charges. "The Department charges cases based on the facts and circumstances of the situation, and that's what was done here," said DOJ Spokeswoman Laura Sweeney.

David Kernell is accused of gaining access to a Yahoo e-mail account used by Palin on Sept. 16. Palin was named Senator John McCain's vice-presidential running mate in August.

The next day, the published several screen shots of Yahoo e-mail messages, e-mail addresses of Palin family members and associates, and other data that anonymous hackers claimed to have obtained from Palin's private account.

Grant Gross, in Washington, contributed to this report.

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