Palin Email Hacker Says Emails Were Public Record... So No Crime?

from the legal-twists-and-turns dept

Thu, May 21st 2009 7:00pm — Mike Masnick

Last year, we noted two separate problems with trying to prosecute the guy accused of figuring out Sarah Palin's Yahoo email account password and posting it to the internet. First, the Justice Department has stood behind a position that opened emails are not private, based on a very literal reading of the law (you can check the link to understand the reasoning). Second, the law used to charge the guy specifically said that it was only a felony if it was used to further a criminal activity. That is, the hacking, by itself, wouldn't be seen as a crime unless it was a part of a larger criminal activity -- which it wasn't. Prosecutors changed the charges earlier this year to address that -- claiming that the criminal activity was a violation of Palin's privacy.

The accused guy, David Kernell, and his lawyers are trying a variety of different defenses (not surprisingly, of course), including claiming that Palin's privacy was not violated, because Palin's emails were a public record because (due to a separate lawsuit) a court had ruled that Palin was required to preserve her Yahoo account email. Because of this, the argument goes, the emails are part of the public record (which, given the first DOJ definition above, could fit under the DOJ's interpretation of the law). It's difficult to see this line of reasoning succeeding directly, as it seems to defy common sense, so it would be surprising if a judge bought into it.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: david kernell, email, hacking, sarah palin

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Bettawrekonize, 21 May 2009 @ 7:04pm

I'm no Sarah Palin fan but this is a case where I hope that kid gets in trouble.
[ link to this | view in chronology ]
- Anonymous Coward, 22 May 2009 @ 6:05am
  
  Re:
  That's OK because she's no fan of yours
  [ link to this | view in chronology ]
Anonymous Coward, 21 May 2009 @ 7:44pm

Down with Tennessee Democrats and their hacker children.
[ link to this | view in chronology ]
Trevlac, 21 May 2009 @ 8:21pm

I hope he gets off scott-free and sets a precedent.
[ link to this | view in chronology ]
- Anonymous Coward, 21 May 2009 @ 8:37pm
  
  Re:
  Why, so people can hack our E - Mails with no consequences? Well, maybe the backlash might change the laws.
  [ link to this | view in chronology ]
  - Less Cowardly Than You, 5 Jun 2009 @ 8:27pm
    
    Re: Re:
    He didn't hack anything, he simply answered their password recovery questions. If someone can do that to you, then obviously you are not smart enough to be using the internet...
    [ link to this | view in chronology ]
- Anonymous Coward, 22 May 2009 @ 2:38am
  
  Re:
  Missed your commentary, bud. You should comment more often.
  [ link to this | view in chronology ]
Windowslogy, 21 May 2009 @ 8:56pm

Strengthen your password
If you were Sarah Palin and you used your first born child's birth date for a password to open a public email account, you were doomed to be hacked. For whatever reasons, it's a kind of fun to hack into public figures' email accounts. Seeing Sarah Palin's silly stumbles during the campaign, I was not surprise at all somebody hacked her email account.
[ link to this | view in chronology ]
- Anonymous Coward, 22 May 2009 @ 6:12am
  
  Re: Strengthen your password
  Don't you ever feel foolish, getting all your information from (P)MSNBC, Daily Show, John Stewart and the mainstream left wing media?
  
  Speaking of stumbles - the current President - the Exalted One - looks like a total jackass after promising to close Gitmo within a year. Even his own party won't provide the funds to carry out his lunatic campaign promise.
  
  But of course, he's so much more experienced than Palin. Yeah sure - the man can't speak without a teleprompter in the room.
  
  And they made fun of Bush's malaprops. Barry Obama is an idiot and it's becoming clearer every time he opens his mouth
  [ link to this | view in chronology ]
  - Anonymous Coward, 22 May 2009 @ 6:13am
    
    Re: Re: Strengthen your password
    Biden makes Bush look like a Rhodes scholar.
    [ link to this | view in chronology ]
Tom Ryan, 21 May 2009 @ 9:05pm

Whether is was Sarah Palin or any other American Citizen, there was Malicious intent. He clearly stated he was searching for information on troopergate but was not successful. He then posted her modified email information to a hacker forum.

How is it hard to prosecute? It's Simple "Computer Fraud and Abuse Act." It clearly states "Knowingly and with the intent to defraud, trafficking in a password or similar information through which a computer may be accessed without authorization. "

Is this not what this person did?
[ link to this | view in chronology ]
- Dan, 21 May 2009 @ 9:30pm
  
  Re:
  The problem is not that he did something wrong, which he clearly did, it's that he's being tried on trumped up charges that are a stretch in the first place. Essentially, the lawyers aren't trying to get the kid off scott free, they're trying to get the charges to be more realistic, misdemeanor hacking instead of felony hacking.
  
  Although really, it isn't and never was "hacking."
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 May 2009 @ 9:37pm
    
    Re: Re:
    Perhaps it's not a felony but there still should be some punishment.
    [ link to this | view in chronology ]
  - hegemon13, 22 May 2009 @ 6:15am
    
    Re: Re:
    If he hoped to get a lesser charge, maybe he should not have tried hacking such a public figure. I don't agree that politicians should have more rights than the average citizen, but the reality is, if you hack Joe Schmo down the street, you'll probably get a misdemeanor, or even a dismissal of charges. If you hack a vice-presidential candidate, they're going to throw the book at you, and more. There is a certain sense of hubris displayed when a person hacks a public figure as opposed to an otherwise-unknown citizen, so perhaps increased charges make sense, to a degree.
    
    In any case, the hacker knew what he was doing, who he was hacking, and how risky that could be. He did it anyway, and it became big news. Now, he can't really expect to plea down very much.
    [ link to this | view in chronology ]
  - Adept-Slacker, 22 May 2009 @ 2:28pm
    
    Re: Re:
    Gotta go off-topic for a second...
    
    Although really, it isn't and never was "hacking."
    
    I know a lot of the people here are probably savvy enough to realize this, but I'm glad someone said it.
    
    The kid resets her password using easily-obtained information, and it's 'hacking'? I suppose by that line of thought if I found her spare house key under the welcome mat and entered her home, it would be breaking and entering.
    
    Sure, I'd still be doing something illegal: trespassing. Much like I think the 'hacker' was merely doing, until he went and posted info about it elsewhere and caused all that chaos... Changing her password makes it worse, but it's still a far cry from REAL hacking.
    [ link to this | view in chronology ]
    - hegemon13, 22 May 2009 @ 7:51pm
      
      Re: Re: Re:
      "The kid resets her password using easily-obtained information, and it's 'hacking'?"
      
      Not particularly impressive hacking, but many would call it that. The word is slang in this context and has a pretty wide range of meanings.
      
      "I suppose by that line of thought if I found her spare house key under the welcome mat and entered her home, it would be breaking and entering."
      
      Yep, it sure would. If the house is locked, and you do not have permission to enter, it's breaking and entering whether you pick the lock, break a window, or find a key.
      [ link to this | view in chronology ]
      - Adept-Slacker, 26 May 2009 @ 10:08am
        
        Re: Re: Re: Re:
        Ok, I suppose you're right... I just think in either case the name doesn't accurately fit the action.
        
        I'll admit I'm a complete nerd, so I hate when 'hack' is used for something that doesn't require an intimate knowledge of security and technology. Sure, googling info in order to answer password security questions takes a little clever thinking, but not much.
        [ link to this | view in chronology ]
- Anonymous Coward, 22 May 2009 @ 2:38am
  
  Re:
  As an officer holding a public office, there are expected liberties that will be given up. For example, all emails are public record, as well as home and personal life are increasingly under the microscope. I thought Levi Johnston proved that.
  
  Am I missing something else here?
  [ link to this | view in chronology ]
Les, 21 May 2009 @ 9:34pm

Sarah Palin's Email Hacker
His defense about the emails being public record is only a valid defense if he had previously requested same records via the Freedom of Information Act. Even then, what he did to gain access to the records can be a crime.
[ link to this | view in chronology ]
Anonymous Coward, 21 May 2009 @ 9:53pm

It's not felony, it's treason, kid should be hung.
He is a pawn for the socialists sob's whose actions constantly attack the freedoms we once had, constantly degrade the constitution, constantly commit treason, let's hang him on the white house lawn along with the first bastard, Nancy, Harry, and all the all the others that put their own power above AMERICA.
[ link to this | view in chronology ]
- Azrael, 22 May 2009 @ 12:38am
  
  Re: It's not felony, it's treason, kid should be hung.
  Heil Bush ! Sieg heil ! Sieg heil !
  [ link to this | view in chronology ]
- Mechwarrior, 22 May 2009 @ 7:29am
  
  Re: It's not felony, it's treason, kid should be hung.
  I suppose the Patriot Act gave us protection for our freedoms? I want to know, once all of our freedoms are taken away (Like, I dunno, having a different opinion from conservative radicals), would threat from terrorism be dealt with?
  [ link to this | view in chronology ]
Techsupoort, 22 May 2009 @ 12:37am

RE:
That is, the hacking, by itself, wouldn't be seen as a crime unless it was a part of a larger criminal activity.
[ link to this | view in chronology ]
Anonymous Coward, 22 May 2009 @ 5:56am

If I ever run for office then are all my email open to the public???? I guess it is to late now to stop subscribing to all the porn feeds.
[ link to this | view in chronology ]
Anonymous Coward, 22 May 2009 @ 6:37am

still not cool
listen the lady is crazy, but don't kick a hive unless you're willing to get stung for it.
[ link to this | view in chronology ]
Matt Bennett, 22 May 2009 @ 6:48am

I don't think he should be held guilty of a felony, cuz saying that violating here privacy is the "further crime" is bullshit. That would completely gut that provision in the law, as how could you do any hacking without violating someone's privacy? But he should be found guilty of something, even if it's just a relative slap on the wrist.
[ link to this | view in chronology ]
JustMe, 22 May 2009 @ 8:32am

Re: Mike OP
Common sense? The US Justice code? You must be new here.

Buah ha ha ha I crack myself up.
[ link to this | view in chronology ]
Wolfy, 22 May 2009 @ 11:37am

All he did was use logic combined with intuition to guess her (weak) password, with the presumed intention of showing she was violating the public official communication laws (which she was indeed doing). Police use this technique often in pursuit of criminals.
[ link to this | view in chronology ]
- Anonymous Coward, 22 May 2009 @ 1:10pm
  
  Re:
  Exactly. Why isn't Palin getting hauled into court and thrown into jail for try to avoid that law?
  
  PS the media of the left is way more truthful than the right. Just look at junkie Limbaugh..
  [ link to this | view in chronology ]
  - hegemon13, 22 May 2009 @ 7:53pm
    
    Re: Re:
    "PS the media of the left is way more truthful than the right. Just look at junkie Limbaugh.."
    
    HAHAHAHAHAHA! Wow, you are as brainwashed as the ditto-heads. Media? Truthful? About politics? Seriously, is this a joke?
    [ link to this | view in chronology ]
- Oktober, 22 May 2009 @ 1:50pm
  
  Re:
  You've hit the nail on the head. The rub here is that because she was using the yahoo account as a means to conduct state business outside the reach of the public records laws, the contents of that account are de facto public records.
  [ link to this | view in chronology ]
how to hack yahoo passwords, 25 May 2009 @ 1:34am

how to hack yahoo passwords
http://www.cheapcrack.net/hack-facebook-password.html are reliable!

Their service hack into yahoo account is incredible!

I was a little antsy waiting for know yahoo hacking password but once I got the email that they had gotten in and I saw the proof my heart dropped! Within minutes of making the payment I had the password! This is real, not no gimmick! I highly recommend these guys! I know ppl are always iffy about trusting such a site, but I was desparate and said FUCK IT thank goodness that MilanoRosa.com is legit!
I thank a bunch, RayaHari is the BEST!!!!!

BTW, I found another website that can hack yahoo passwords and other one specialized in hack into hotmail passwords.

Diane Calhoun, New York

US
[ link to this | view in chronology ]
MikeS, 7 Jul 2009 @ 9:13am

Crime
The constitution says you need a court order to search someones property. So it clearly is a crime. The question is has the law caught up with technology and how severe is it to hack someone else email account private or otherwise. Personally, I hope he get severely punished, but I doubt the law considers this as serious as the technology community does. What do you think would happen to a student who high-jacked a Professors emails account, changed the password, and published it on line so other students could manipulate the files?
[ link to this | view in chronology ]