While she is no longer a public official, former Governor Sarah Palin has unwittingly contributed to a Tennessee federal district court upholding the constitutionality of the federal Computer Fraud and Abuse Act (“CFAA”). The case in question is a criminal prosecution against David Kernell, the college student charged with violations of the CFAA for accessing Palin’s Yahoo email account during the 2008 Presidential campaign. Kernell moved to dismiss the indictment on the ground that the CFAA is unconstitutional. U.S. v. Kernell, 2010 WL 1543847 *3 (E.D. Tenn. April 7, 2010).
Specifically, Kernell argued first, “that it is “constitutionally unfair” for Congress to “use a state common law civil cause of action in tort to transform a federal misdemeanor into a federal felony” and second, “that Section 1030 [the CFAA] is unconstitutionally vague both on its face and as applied to him. Id. The court rejected Kernell’s motion and specifically held that the CFAA’s terms “access,” “obtain,” and “information” are not vague, and the even though those terms “are not defined in Section 1030, their meaning in the context of the statute can be understood by a person of ordinary intelligence” and thus “[t]he failure to define statutory terms does not automatically render those terms vague.” Id. at *5.
The court also held that the phrase in the statute “any criminal or tortious act” is not vague” because “[t]he plain meaning of the phrase provides objective criteria that permit an individual to determine whether a particular violation of . . . [the CFAA] amounts to a felony.” Id. at *6. In short, the court held that the CFAA does not violate the due process clause of the Fifth Amendment to the U.S. Constitution. Without mentioning the Lori Drew case, U.S. v. Drew, 259 F.R.D. 449, 462-68 (C.D. Ca. 2009), the court’s decision is counter to the reasoning of that decision which found the CFAA to be unconstitutional.