By JAMIE SATTERFIELD
Scripps Howard News Service
November 13, 2008
He may be an immature prankster.
He may even be a low-level criminal.
But the defense attorney for a 20-year-old University of Tennessee student who allegedly accessed Alaska Gov. Sarah Palin's e-mail account after figuring out the vice presidential candidate's password contends that Kernell is neither a federal felon nor a hacker.
Attorney Wade Davies is asking U.S. District Magistrate Judge Clifford Shirley to toss out a felony charge filed against Kernell last month and ban federal prosecutors from labeling Kernell a "hacker."
Kernell, whose father is a Democratic state legislator, rose to national infamy when he allegedly used the Internet to dig up answers to security questions that allowed him to change Palin's Yahoo! Mail account. He posted the e-mail and the new password to the forum www.4chan.org under the username rubico10(at)yahoo.com on Sept. 16, the indictment alleges.
He did so after national media reports that Palin, who had been tapped to stand alongside Sen. John McCain as Republican vice presidential candidate in McCain's failed bid to win the White House, had funneled Alaskan gubernatorial business e-mail through her personal Yahoo! Mail account, the indictment contends.
A blog poster identifying himself as "rubico10" later boasted that it took "45 minutes on Wikipedia and Google" to figure out Palin's password security answers. The poster was disappointed to learn, however, that a review of her e-mail account presented nothing that might "derail her campaign."
The FBI quickly tracked down Kernell as a suspect, and the Knoxville, Tenn.-based U.S. Attorney's Office secured an indictment against him last month.
Davies contends that indictment is flawed on its face because it tries to elevate to a felony what is essentially a misdemeanor offense.
Both sides in the case are asking for a delay in Kernell's Dec. 16 trial date. Shirley has scheduled a hearing in the case for Friday.
The legalese is a tad confusing but, in essence, Davies' motion to dismiss the indictment contends federal prosecutors are stacking the misdemeanor crime of illegally accessing a computer and the misdemeanor crime of accessing an electronic "facility" such as Yahoo! Mail together to create a felony.
Davies argues the two alleged crimes are identical. If Kernell committed one, he committed the other and can't be punished for both, Davies argued.
"The Department of Justice's own manual on prosecuting computer crimes confirms that the criminal act used to enhance a (misdemeanor) penalty (to a felony) must be a separate act, Davies contends.
Davies also is taking aim at the prosecution's use of terms including "hacker," and "hacked."
"Computer hacking is ... a slang term indicating the use of specialized computer skills to break codes and often to do damage to remote computers," Davies wrote. "The use of the slang term hacking would not even appropriately describe the allegations that have been made against Mr Kernell. According to the indictment, Mr. Kernell is a college student who allegedly accessed a Yahoo! e-mail account simply by guessing three security questions based on readily available information from public sources."
"Because of the nature of the case, significant forensic evaluation is required," a motion by Davies and Assistant U.S. Attorney Greg Weddle stated.
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