Seems that his lawyers are going to not only fight to remove the felony charge, but have some of the charges dropped. Their defense is rather compelling.
Wade Davies, David Kernell defense lawyer, is approaching this from the angle that the email that was lifted and posted online was a matter of "public record" and should have been made a part of the open record. He's siting a suit filed in an Alaskan court where a judge ultimated ruled that Palin's "on-the-job" correspondance using her personal email had to be preserved.
Tennessee, he says, only recognizes an invasion of privacy when the invasion exposes something that is inherently private, and the victim was placed in a false light by the invasion. But Palin wasn’t placed in a false light by the alleged hack, 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.”
Davies is referring to litigation that was filed by an Alaskan activist before the alleged hack occurred. That lawsuit sought Palin’s private e-mail. 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. A judge ruled, after news of the hack broke, that Palin was required to preserve the correspondence in her private accounts until the lawsuit was resolved.
Davies implies in his motion to dismiss that there are reasonable grounds to conclude that Palin’s Yahoo correspondence was a public record, and cites case law showing that information that already appears on the public record can’t be considered private.
Once the "privacy" issue is taken off the table, the government has no felony case at all.
But what of the photos?
As for photos of Palin and family members that Kernell allegedly obtained from the account, Davies says there’s no expectation of privacy for the images, because the people depicted in the photos “continue to regularly and voluntarily appear in the national media.”
Sarah and Todd are more than willing to shove the family in front of the cameras at any given moment. They are hardly a "private' bunch of folks. Sarah even convinced her daughter to openly advocate for abstinence in the face of her own "out of wedlock" pregnancy.
Then there's the obviously trumped-up charges of "wire-fraud".
Aside from the computer fraud and privacy charge, Davies also took issue with a wire fraud charge alleging that his client deprived Palin of property by accessing her e-mail. Davies argues that the charge isn’t valid because e-mails constitute “ethereal” property, not “traditional property” as defined by the law. Kernell, he wrote, “was not trying to steal from Sarah Palin.
More from Wired
Conservative bloggers had a field day with this story, as they do with any and all stories that revolve around Sarah Palin.
Michelle Malkin led the charge right out of the gate.
Hacking e-mail is a federal crime. A TV anchor who broke into his colleague’s e-mail account recently pleaded guilty and faces a maximum five years in prison.
The law will catch up to the hackers, but what about the lowlifes who are now gleefully splashing the alleged contents of Palin’s private e-mail account all over the Internet?
The Gawker smear machine — see here for all the background you need — has posted private family photos of Palin’s children that were apparently stolen from the e-mail account.
They have used Bristol Palin’s illegally obtained private cell phone number from her mom’s private account, recorded her voicemail message, and posted it on their website.
Malkin is apparently referencing this recording of Bristol's "outgoing" VM message. There is even the contact list from Palin's email account published on Gawker. From my perspective, I find it less-than upsetting that a person's private email account was published, reguardless of who that might be. There are thousands of websites that require you to list you email account when signing up to comment on various topics.
That being said, hacking is still a crime. But, the fact that Sarah Palin's email account is technically nothing more than "ethereal" property and not "traditional" property, the likelihood that a jury will allow the wire-fraud charges to stand is kind of up in the air right now.
Was Palin in any danger of having money/property stolen or extorted from her? Likely not. But that is ultimately up to the courts to decide.
Malkin's aligations that this was a group of "infamous hackers" was thoroughly debunked by a person that monitors the site where originally published - /b/ - who apparently sent an email to Malkin to clear the air on a few points.
There are several misconceptions and errors in most accounts of this story, including your post. Most significantly, the perpetrator(s) were not members of an infamous group of hackers. I don’t blame you for misunderstanding this, because in all the media coverage regarding the war with Scientology the media has completely failed to explain what Anonymous is.
Anonymous is not exactly a group. It is people using the umbrella of a web discussion board for cover to be as offensive, funny, strange, or whatever as they want.
None of this will absolve the very real fact that David Kernell is accused of hacking into Sarah Palin's email and posting screen-caps of a message a several photos. What this case will ultimately show is that the charges leveled against Kernell were severely inflated and the resulting conservative reaction increase exponentially simply due to the fact that it was Sarah Palin's email.