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Attorneys for Palin email hacker: 'Don't call him hacker'

The semantics of electronic intrusion

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Attorneys for the University of Tennessee student accused of breaking into Alaska Governor Sarah Palin's email account have filed a small forest's worth of court documents in defense of the high-profile suspect. Among them is a motion to prohibit prosecutors from referring to their client as a hacker.

The terms "hacker" and "hacking" have no basis under the statute Kernell is accused of violating, a motion filed in US District Court in Knoxville argues. It goes on to seek an order forbidding prosecutors and their witnesses from using those words when referring to the case.

"Because of the negative connotations evoked by these terms, there is a significant danger of unfair prejudice, confusion of the issues, and misleading the jury," the motion states. "Hackers are commonly portrayed as dangerous criminals who are involved in malicious conduct such as credit card fraud, stealing, intentional disruption of legitimate activities and causing economic damages."

According to accounts provided in court documents and a narrative taken from the 4chan website, Kernell accessed Palin's Yahoo email account by correctly guessing three password-reset questions using information that was readily available online.

"'Hacking,' which implies the use of sophisticated means or specialized computer skills, is not applicable to the alleged conduct," attorneys for Kernell wrote.

They aren't the first people to quibble with use of such terms in describing the acts Kernell allegedly carried out. Some seasoned security experts have also taken issue with use of the word "hack" to be synonymous with "electronic intrusion."

"It doesn't constitute what we would label as advanced hacking," Rob Graham, CEO of consultancy firm Errata Security, said of the acts alleged in the indictment. "It's something that a teen can figure out, rather than an advanced professional."

The document is one of three defense motions filed since Kernell was indicted in early October for intentionally accessing a protected computer without authorization. The barrage suggests attorneys for Kernell, the son of a a Democratic Tennessee state lawmaker, intend to mount a defense that is considerably more vigorous than many in computer crime cases.

One motion argues that prosecutors improperly charged Kernell with a felony instead of a misdemeanor, as the statute in the case calls for. Under the law, the unauthorized access of a protected computer should be classified as a misdemeanor except when it is used to further a separate crime. In Kernell's indictment, that other crime is the unauthorized access of Palin's email account.

The indictment "is very strangely pled and circular," said Jennifer Granick, a staff attorney for the Electronic Frontier Foundation. "It's not surprising given the nature of the charges and given the quality of the indictment that the defendant would see a real opportunity here to make some points in favor of the defendant."

A separate motion jointly filed by the prosecution and defense seeks to delay the trial date, which is currently set for December 16. The judge in the case has yet to rule on any of the motions. Don't expect this case to be settled anytime soon. ®

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