David Kendall, the University of Tennessee student accused of hacking Gov. Sarah Palin's email account, was indicted today by a federal grand jury. According to the indictment, Kendall is charged with unlawful access to Palin's email account, which carries a maximum penalty of five years in jail and a $250,000 fine. One can certainly imagine that with the high profile nature of the case, and the public disclosure of Palin's materials, federal prosecutors will be gunning for Mr. Kendall.

Bill McGeveran, an information law expert, raises questions about the government's case at the Info/Law blog.

Professors Orin Kerr and Paul Ohm, probably the two most knowledgeable scholars in the country on the subject of computer crime, are both dubious about the way the indictment achieves felony charges. (In short, the unauthorized intrusion into Palin’s e-mail needs to have been in furtherance of some other crime or tort; in typical cases that would be fraud or identity theft, but here it isn’t clear what that other crime or tort might be.)

Citing his amicus brief from the Lori Drew case, Professor McGeveran feels that the government stands on weak ground in the case. Essentially, to be charged with a felony, Kendall had to be accessing the information in furtherance of a crime. It is unclear that simply posting the materials (or violating the ToS as in United States vs. Drew) will stand the furtherance test. Olin Drew points out this curious logic:

Oddly, though, the indictment doesn't exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was "in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section lO30(a)(2)" But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime. Otherwise the felony enhancement is meaningless, as every misdemeanor becomes a felony.

Just a few weeks ago, the Palin hacking was gearing up to be a watershed digital privacy case. A flawed prosecution may very well be the run-up necessary to unleash terrifying legislation.