The U.S. Supreme Court recently announced that it would not hear a case concerning the man who hacked into the email account of Sarah Palin. The hacker, David Kernell, was convicted of a felony related to his hacking and eventual posting of the Republican candidate’s emails online.
Kernell served a year and a day in federal prison in Kentucky and is currently on probation. Kernell was studying at the University of Tennessee in 2008 when Sarah Palin was running for Vice President. Kernell’s father, Mike, has been a Tennessee Representative for Shelby County for the past 38 years.
The younger Kernell, a frequent user of the popular internet message board service known as 4chan, hacked into Palin’s Yahoo! e-mail account using the site’s password recovery feature. He then posted the password to her account, as well as several screenshots of her emails to the 4chan site.
Beyond just stealing the information, Kernell made the additional bad decision of deleting the evidence. He commented at one point that he was afraid the FBI would investigate his stunt and, in an attempt to cover things up, deleted files from his computer, removing his browser and defragmenting his hard drive. Turns out Kernell was right and the FBI did launch an investigation, eventually stumbling upon a 4chan post where he bragged about this technical savvy perpetrating the hack.
The law that ended up busting Kernell is contained in the Sarbanes-Oxley Act, a federal law passed in 2002 designed to certify the accuracy of financial records published by major corporations. A lesser-known provision of the law can be interpreted very broadly and has been used in the past to catch those who delete electronic data in an attempt to avoid being caught for a larger, typically more serious crime. Several previous instances involve those who are targets of investigations involving child pornography deciding to delete their collections as the police close in.
Kernell’s attorney claimed that his client’s case was different than the others because, unlike the child pornographers who deleted the incriminating material before police made their busts, Kernell did not know that there was an ongoing investigation. Kernell’s lawyer said that the provision of Sarbanes-Oxley that makes it illegal to anticipatorily obstruct justice is unconstitutionally vague and should not be used to convict someone for obstructing an investigation that had not yet begun.
A panel of the 6th Circuit said that Kernell admitted anticipating such an investigation and as a result, his conviction was justified. Now that the Supreme Court has declined to hear the case Kernell’s conviction will stand.
:“Sarah Palin’s Hacker Turned Down by Supreme Court,” by Michele Bowman, published at Lawyers.com.
(Lee Davis is a Chattanooga attorney who can be reached at email@example.com or at 266-0605.)