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May 1, 2010

Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase.  Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor.  A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote.  "America's elections depend upon fair competition.  Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play.  As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case.  For example:

1.  Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings?  Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2.  Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing?  On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play."  But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3.  Should Kernell's age be an aggravating or mitigating factor at his sentencing?  On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy.  But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service?  is the recommended guideline range really likely to speak to any of the special factors involved in this case?  Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

May 1, 2010 at 11:21 AM | Permalink


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The politics should be an aggravating factor. While digging for dirt is a time-honored means of going after political figures, when that dirt-digging becomes criminal (and clearly so), the potential for embarrassment is magnified and it impacts our democracy.

I hope he gets 2 years.

Posted by: federalist | May 1, 2010 1:29:36 PM

If a hacker causes more than $6 million in damage or whatever the value placed on life happens to be, it is justified to execute him for the murder of an economic person.

Posted by: Supremacy Claus | May 1, 2010 2:03:37 PM

federalist. I agree with you in theory however I think there is zero evidence in this case that there was a political motivation behind the attacks other than in the broad sense she is a political figure. None of the information was used for political gain or in fact even seen by any political figure. This wasn't "dirty tricks." It was simply a young man who let his geekiness and his personal politics get the better of him.

I don't condone his actions but this type of things goes on all the time in the hacker community. If he hadn't picked a high profile target to hit, he'd never would have been prosecuted. The real lesson here is "don't pick on people who carry a big stick."

As for Doug's questions I do suspect that she qualifies under the victim's right act but I would be very surprised if she weighs in on the sentence. There really isn't any political advantage to her doing so.

Posted by: Daniel | May 1, 2010 3:34:14 PM


Except of course if she were to be magnanimous and urge leniency. I could see some advantage in that, but I don't think it will happen.

Posted by: Soronel Haetir | May 1, 2010 7:15:16 PM

So how's that hackey-obstructey thing workin' for ya?


Posted by: Res ipsa | May 3, 2010 5:06:51 PM

Wirklich danke, ich finde so eine gute Seite, ich muss es aufschreiben, um meinen Freunden empfehlen

Posted by: pandora perlen | Nov 4, 2010 11:09:47 PM

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