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Judge in Sarah Palin e-mail hacking case denies motion challenging computer search

David Kernell's Fourth Amendment rights not violated by search, judge says

April 7, 2010 08:39 PM ET

Computerworld - FBI agents did not violate alleged hacker David Kernell's Fourth Amendment rights when they searched through the entire contents of his computer in connection with their investigation, a federal magistrate judge ruled this week in the Sarah Palin e-mail hacking case.

In a 41-page ruling this week, Judge Clifford Shirley in Knoxville denied Kernell's motions to quash the information gathered from those searches and said that no unreasonable search or seizure had taken place, as Kernell had claimed.

In throwing out Kernell's motion to quash, Judge Shirley noted that numerous courts have previously ruled it unnecessary for warrants authorizing the search of a computer, to have language specifying how the search should be conducted.

"Contrary to Defendant's argument, [the executing officer] seized all of the computer equipment, not each individual file," the judge noted. "This was proper because all of the computer equipment and storage devices were within the scope of the search warrant."

The agent conducting the search acted reasonably and "his examination of each file on Defendant's computers and storage media was reasonable and necessary," the judge said.

Kernell, 22, is alleged to have broken into then Governor Sarah Palin's Yahoo e-mail account in Sept. 2008, when she was Sen. John McCain's running mate in the presidential elections. He is then alleged to have publicly posted screen shots of several messages from her account.

Kernell was initially charged in October 2008, with a single county of felony unauthorized access of a computer. In Feb 2009, Kernell was charged with identity theft, wire fraud, computer fraud and anticipatory obstruction of justice in a four-count superseding indictment.

Kernell, a University of Tennessee-Knoxville student at the time of the incident, is the son of a Democratic state legislator from Memphis. After his indictment, Kernell has filed several motions challenging various aspects of the case against him.

In his motion to suppress the information gathered from the computer searches, Kernell claimed that the government agents had exceeded the scope of the warrant by searching the entire contents of the computer.

He claimed that the searches of his computer were in violation of Fourth Amendment protections and a particular provision in the Federal Rules of Criminal procedure. Kernell argued that agents should have carried out a "particularized search" for the specific information they were looking for, rather than the broad search that was conducted.

The government, for its part, responded by claiming that the seizure and search of Kernell's laptop was constitutional. It argued that Fourth Amendment protections do not require search warrants to specify the precise manner in which searches should be carried out.

Judge Shirley's ruling on the matter is the latest pre-trial setback for Kernell. Last week, the judge denied another motion by Kernell seeking to quash a search warrant for ISP records from Yahoo, which is based in California.

Kernell had challenged the authority of a court in Tennessee to issue a search warrant for an entity based in California. Prior to that ruling, the judge had issued another ruling which basically allows the government obstruction of justice charge against Kernell to stand.

Kernell is currently out on bond. His trial is scheduled to begin later this month.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at Twitter @jaivijayan or subscribe to Jaikumar's RSS feed Vijayan RSS. His e-mail address is jvijayan@computerworld.com.

Read more about Cybercrime and Hacking in Computerworld's Cybercrime and Hacking Topic Center.



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