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.

Join the newsletter!


Sign up to gain exclusive access to email subscriptions, event invitations, competitions, giveaways, and much more.

Membership is free, and your security and privacy remain protected. View our privacy policy before signing up.

Error: Please check your email address.

Tags sarah palin

Keep up with the latest tech news, reviews and previews by subscribing to the Good Gear Guide newsletter.

Robert McMillan

IDG News Service
Show Comments

Most Popular Reviews

Latest Articles


PCW Evaluation Team

Cate Bacon

Aruba Instant On AP11D

The strength of the Aruba Instant On AP11D is that the design and feature set support the modern, flexible, and mobile way of working.

Dr Prabigya Shiwakoti

Aruba Instant On AP11D

Aruba backs the AP11D up with a two-year warranty and 24/7 phone support.

Tom Pope

Dynabook Portégé X30L-G

Ultimately this laptop has achieved everything I would hope for in a laptop for work, while fitting that into a form factor and weight that is remarkable.

Tom Sellers


This smart laptop was enjoyable to use and great to work on – creating content was super simple.

Lolita Wang


It really doesn’t get more “gaming laptop” than this.

Featured Content

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?