A grand jury has handed down this indictment against David Kernell, the son of a Democratic state legislator in Tennessee, for allegedly hacking into Governor Sarah Palin’s e-mail account. (News story here.) Professors Orin Kerr and Paul Ohm, probably the two most knowledgeable scholars in the country on the subject of computer crime, are both dubious about the way the indictment achieves felony charges. (In short, the unauthorized intrusion into Palin’s e-mail needs to have been in furtherance of some other crime or tort; in typical cases that would be fraud or identity theft, but here it isn’t clear what that other crime or tort might be.)
This sounds like DOJ might be engaging in some of the same questionable tactics as in the Lori Drew case, which I’ve discussed before. Here, like there, the [alleged] underlying behavior was wrong and should be criminal. But it matters how you achieve that result, and loosening the law just to get the bad guys gives too much discretion to prosecutors.
Question of the day: will a failed prosecution here (or in the Drew case) lead to reform of the antiquated computer hacking/trespass/fraud statutes?