Palin hacker loses before the 6th Circuit

• UNITED STATES V. DAVID C. KERNEL

The U.S. Court of Appeals for the 6^th Circuit has upheld the felony conviction for David Kernell, a former University of Tennessee student who was found responsible for gaining unauthorized access to Sarah Palin’s private Yahoo email account. Kernell was convicted by a jury of a misdemeanor for accessing the email account and a felony for obstruction of a federal investigation.

The incident precipitated a high-profile jury trial in the Eastern District of Tennessee, with testimony from Palin and her reality TV star daughter, Bristol. While Kernell claimed the hacking was simply a college prank, the prosecution portrayed the hacking as a politically motivated attempt to derail the campaign of Palin and her presidential running mate John McCain.

Kernell was sentenced to one year and one day in prison, he was released in November 2011. Now Kernell is appealing part of his conviction. David Kernell and his lawyer, Wade Davies, appealed the felony conviction on the grounds that it was unconstitutional to prosecute an individual for destroying records when there was no formal investigation. While the court agreed that the relevant law was vague, the three-judge panel upheld the conviction on the grounds that Kernell feared that there would be an FBI investigation into the incident later. Kernell made the mistake of posting on an internet discussion board expressing precisely those fears.

The court ruled that David Kernell’s decision to erase his internet browsing history and hard drive further proved his obstructive intent. The opinion released by the Sixth Circuit showed states that Kernell was not aware of any formal FBI investigation into the incident but found Kernell’s awareness of a potential probe is sufficient to uphold a conviction on obstruction of justice.

Kernell gained access to Sarah Palin’s email account during the 2008 presidential campaign by repeatedly guessing the account’s password reset questions. He correctly answered the question regarding where Palin met her spouse. After digging through Palin’s email and taking several screenshots, he changed the account’s password and posted it on an Internet message board for others to peruse and then bragged about his accomplishment.

Davies, Kernell’s attorney, said the 6^th Circuit’s opinion confirms that Kernell had no knowledge of an official investigation at the time of the alleged obstruction. Davies said he plans to seek review by the full Sixth Circuit and perhaps the Supreme Court on the constitutionality of being convicted for obstructing justice without knowledge of a pending investigation.

Read: “Sarah Palin email hacker loses appeal,” by Terry Baynes, published at Reuters.com.

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