Palin E-mail Hacker Trying New Defense

The Tennessee college student charged with hacking into Alaska Gov. Sarah Palin's Yahoo e-mail account last year may escape stiff potential penalties if his lawyer wins a series of motions about Palin’s expectation of privacy, according to a report in Wired.com.

David Kernell's criminal defense lawyer, Wade Davies, is trying to gut a key part of the government’s case by arguing that his client couldn’t have violated Palin’s privacy because a judge had pronounced her e-mails to be a matter of public record.

Davies argues that in the alleged crime's venue of Tennessee an invasion of privacy is recognized only when the invasion exposes something that is inherently private, and the victim was placed in a false light by the invasion.

Says Davies in his brief: Palin wasn’t placed in a false light by the alleged computer trespass, and her privacy wasn't invaded since “an Alaska court has issued an order requiring Ms. Palin to preserve the correspondence in her private e-mail accounts on the grounds that the e-mails are public records.”

That order was issued in a case that was filed by an Alaskan activist before the alleged computer trespass occurred. The activist charged that Palin used her Yahoo accounts to conduct official government business and therefore e-mail in the accounts was part of the public record and should be disclosed under Alaska’s public records statute.

Kernell faces one felony count of violating the Computer Fraud and Abuse Act; one count of identity theft for allegedly impersonating Palin to access her e-mail account; one count of wire fraud for allegedly scheming to defraud Palin of property by obtaining information from her account and posting it; and one count of obstruction of justice for allegedly destroying evidence, according to the Wired report.

Also involved in the criminal counts are photos of Palin and family members that Kernell allegedly obtained from the account. Davies argues that there’s no expectation of privacy for the images, because the people in the photos “continue to regularly and voluntarily appear in the national media.”

Without the privacy violation, the felony count falls, Davies argues. He wants the charge reduced to a misdemeanor before the trial even kicks off.

Kernell, allegedly in the guise of an online user “Rubico,” bragged of his break-in on an online forum, revealing he used Yahoo’s “forgot my password” device to change Palin's password to “popcorn,” according to an Associated Press report.

He successfully reset the login information after answering security questions about Palin’s ZIP code, birth date, and where she met her husband -- Wasilla High.