Original URL: http://www.theregister.co.uk/2009/05/21/palin_hack_defence_strategy/

Hack suspect challenges privacy of Palin emails

Kernell lawyers mount maverick left field legal defence

By John Leyden

Posted in Law, 21st May 2009 11:42 GMT

Defence lawyers in the Sarah Palin webmail account hack case intend to claim the Alaskan governor's emails were a matter of public record and therefore enjoyed no expectation of privacy. The novel legal tactic is designed to reduce the seriousness of the charges against their client, David Kernell.

Citing an Alaskan court's decision that Palin's private webmail account, allegedly used for government business, ought to be preserved pending the resolution of a lawsuit, lawyers for hack trial defendant Kernell argue that hacking charges against the 20 year-old ought to be dropped or reduced to less serious misdemeanour offences.

Kernell's attorney Wade Davies reasons that since mails sent through Palin's webmail account were a matter of public record, there ought to be no expectation of privacy and therefore no violation of privacy in exposing these emails to public scrutiny.

The surprise legal manoeuvre by the defence in the closely-watched case is designed to thwart the main charges against Kernell, the 20 year-old student son of a Tennessee Democrat politician, Wired reports.

"He’s not suggesting that email can’t be private," Mark Rasch, a former Justice Department cybercrime prosecutor, told Wired. "He’s saying this particular email was not private or personal because of who she is and because it wasn’t intimate communication."

"He’s also saying that what was in the e-mails would ultimately have been revealed [under litigation], therefore she had no expectation of privacy in it," Rasch added.

Photos that Kernell allegedly obtained after hacking into Palin's email account aren't private either, because the former Republican vice-president candidate and her family were participants in innumerable photo-ops, defence lawyers further argued.

A hacker obtained access to Palin's Yahoo email account - gov.palin@yahoo.com - last September, after resetting its password using Yahoo's password resetting information and publicly available information. Screenshots taken from the account were posted onto the 4chan image board by a user called "Rubico", who informed denizens that the password had been changed to "popcorn".

Investigators traced these original posts back to machines used by Kernell, leading to computer hacking and later identity theft and fraud charges. Davies intends to defend his client against the fraud charges by arguing he accessed Palin's account out of curiosity rather than an intention to defraud, Wired adds.

Kernell’s trial is due to begin on 27 October. ®