A surprise legal maneuver by the defense in the Sarah Palin hacking case could undermine key charges carrying the stiffest potential penalties.
A lawyer for the Tennessee college student charged with hacking into the Alaska governor’s Yahoo e-mail account last year says his client couldn’t have violated Palin’s privacy because a judge had already declared her e-mails a matter of public record.
“He’s not suggesting that e-mail can’t be private,” says Mark Rasch, a former Justice Department cybercrime prosecutor. “He’s saying this particular e-mail was not private or personal because of who she is and because it wasn’t intimate communication. ”
Additionally, photos that 20-year-old David Kernell allegedly obtained of Palin and her family were not private since the Palins are “the subjects of untold numbers of photo-ops,” the lawyer argued last week, in one of a slew of motions and memorandums attacking the government’s four-count federal indictment against Kernell.
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Davies, however, says the Tennessee law is improperly invoked, and Palin isn’t entitled to privacy protection.
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.”
<snip>
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.
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.”
Without the privacy violation, the government has no felony case, Davies argues. Therefore he wants the charge reduced to a misdemeanor.
<snip>
Rasch says that although the alleged public-records status of the e-mail doesn’t give anyone the right to break into the account, “it would be very difficult for
to allege a breach of privacy” if the e-mail is a public record.
He also says that in order to prove a privacy interest in the e-mails, the government would have to share the contents of the e-mails. “I don’t see how they could prosecute the case without doing it,” he says. “Those are the exhibits. They can ask the court to submit them under seal, but how do I as a juror decide if there was an invasion of privacy if I don’t know what he looked at?”
http://www.wired.com/threatlevel/2009/05/palin-hack/
Interesting argument.
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