No Comment — October 8, 2008, 8:00 pm

DOJ Goes Long for Sarah Palin

We will all be able to sleep more soundly tonight knowing that a serious criminal has been apprehended. The Associated Press reports:

David Kernell, 20, of Knoxville, Tenn. entered the plea in federal court in Knoxville, the same day prosecutors unsealed an indictment charging him with intentionally accessing Palin’s e-mail account without authorization. Kernell, an economics student at the University of Tennessee, was brought into court wearing handcuffs and shackles on his ankles.

He was released without posting bond, but the court forbade him from owning a computer and limited his Internet use to checking e-mail and doing class work.

The hearing follows a massive deployment of FBI and Secret Service agents and prosecutors to identify the culprit who hacked into Palin’s email account, removed a series of her communications and published them on the internet.

As Orin Kerr explains here, hacking someone’s email account and making use of the information gained is a crime; it may either be a felony or a misdemeanor, depending upon the hacker’s intentions. And here’s the rub. In order to dramatize the case and get a felony indictment, the prosecutors needed to allege that it was “committed in furtherance of a criminal or tortuous” act. Here’s Prof. Kerr, again on the case:

Oddly, though, the indictment doesn’t exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was “in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section l030(a)(2)” But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime. Otherwise the felony enhancement is meaningless, as every misdemeanor becomes a felony.

Orin considers the indictment and the prosecutor’s case to be fatally flawed. Orin’s obviously right about this. I’d put the likelihood that the prosecutors will secure a conviction on a felony charge at right about zero–unless, of course, they get a jury that would convict a ham sandwich, as can be found often enough. What motivates this prosecutorial overreaching?

Cyber crimes are rampant in America today. Frequently they involve theft of identity metrics used to tap the victim’s credit. As I reviewed in a recent piece for the BBC, however, the Department of Justice has allocated few resources to investigate these crimes except in very large scale and systematic cases—that is crimes in which there is a clear criminal purpose and a clear victim, and tens of millions at stake. Generally the Department has not acted in cases in which the result of the intrusion is merely to embarrass the target, for a fairly obvious reason. At best we’re only talking about a misdemeanor. The Palin email hacking case quite plainly falls into this category. So what is going on?

The Justice Department seems to be setting one of its amazing new rules. When a Republican political figure is damaged in her expectation of being elected to office, it is telling us, that’s a felony. And why is that the case here? Because the hacker helped establish something important: Sarah Palin has been systematically violating the Open Records Act. As David Corn has noted at Mother Jones, Palin relied heavily on private email accounts for improper purposes. As governor of Alaska, she was obligated to maintain as public records her communications with respect to her discharge of official duties. Palin skirted this obligation by turning to private email accounts for government related dealings. In fact, the hacker in question helped flush out Palin’s violations. The hacker also helped establish a motive for the illegal conduct: Palin regularly involved her husband in official business, and it’s easy to understand why she did not want to leave behind evidence of her husband’s involvement.

So why the massive dedication of law enforcement resources to identify and prosecute a hacker whose acts embarrassed a public person by exposing her improper conduct, but reveal no intention to defraud, steal, or otherwise harm his victim? That’s a very good question. On the plus side, I am delighted to see, at long last, federal prosecutors taking action against a hacker. The prohibitions the law provides are important to millions of citizens who rely on the internet for some measure of privacy in their communications. The Palin case got significant media exposure. For the hundreds of thousands who followed it to learn that the culprit was apprehended and suffered consequences is a good thing (I’d sentence young Kernell to empty hospital bedpans for a couple of months; he’d learn something from it).

Then there are the troublesome questions. Why does it mean nothing to the feds when Joe Six-Pack is the victim of Internet identity theft, but the house falls in when a prankster wants to embarrass Sarah Palin? Do you think there might be just a bit of politics lurking behind the scenes? In this Justice Department? And then there is the still-more menacing question: we now know that Palin was systematically violating the Open Records Act trying to keep her official dealings in the dark. By bringing down the hammer on a person who helped expose her misconduct, are the prosecutors actually attempting to cloak the official misconduct of a public servant?

The prosecutors in this case owe us some explanations. And they should start by disclosing who at the Justice Department concluded that a bigger manhunt should be launched against a University of Tennessee computer hacker out to embarrass a Republican political candidate than the Bush Administration sent out after Osama bin Laden at Tora Bora. At a minimum we’re looking at some seriously twisted priorities.

Update from Alaska
While the Alaska legislature’s investigative conclusion today that Palin abused her power as governor in the “Troopergate” case has grabbed the headlines, there is another story out of Anchorage which relates to the equally byzantine Palin email saga. Palin’s use of private email accounts, like the one hacked, to skirt the requirements of Alaska law that her emails be maintained as public records, have been assailed in the courts. Today, the Anchorage Daily News reports, the Superior Court in Anchorage issued an order requiring Palin to preserve her private email accounts pending a final judicial determination of the matter. The ruling is based on a conclusion that the challenge to Palin’s efforts to keep her emails secret was likely to prevail. In a subsequent report, the paper notes that Alaska government offices are now scrambling to compile copies of correspondence sent using Palin’s private email accounts on the grounds that these emails are public records.

All of this is very sharply at cross purposes with the Bush Justice Department’s heavy-handed prosecutorial theatrics in Tennessee targeting a young college student. The Bush prosecutors proceed on the assumption that Palin’s emails are private and not official records. That is now all but established as incorrect. This can only add to the impression that the Justice Department’s case has very little to do with law enforcement, and much to do with an effort to salvage a floundering GOP electoral campaign.

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