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Law Profs Question Felony Charge Against Accused Palin E-Mail Hacker

Posted Oct 14, 2008 7:50 AM CDT
By Debra Cassens Weiss

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Two law professors are wondering why the University of Tennessee student charged with hacking into Sarah Palin’s e-mail account was charged with a felony.

Law professors Orin Kerr of George Washington University and Paul Ohm of the University of Colorado questioned the felony charge against David Kernell, the son of a Democratic state legislator, in blog posts at the Volokh Conspiracy, notes the Chronicle of Higher Education.

Kerr explains that a hacking offense is not a felony unless the government can prove the intrusion was committed to further criminal or tortious activity. “If the government is trying to make this a felony on the theory that the intrusion was designed to further the crime of the intrusion, that strikes me as an extremely weak argument,” Kerr writes.

Ohm adds that the government included an aiding and abetting charge, but doesn’t say who or what was aided and abetted. “Strange, strange, strange indictment,” he comments.

Meanwhile, an Anchorage judge has ordered Palin to preserve e-mails from the hacked Yahoo account, according to the Washington Post blog The Trail. A lawsuit contends Palin used private accounts to conduct state business in violation of the state’s public record laws.

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