Kernell's lawyers: The spyware made him do it

Lawyers for David Kernell, who is charged with hacking into Sarah Palin's webmail and posting her messages on the internet, are now claiming that their client's computer was infected with spyware. According to The Register:

The contention may be used at trial to support arguments that the 21-year-old student son of a Tennessee Democrat politician was not personally responsible for the hack on a Yahoo! account maintained by the former Alaskan governor, which was traced back to an IP address used by Kernell.

[...]

Palin described the incident as hugely disruptive to the Republican presidential campaign in her recently published book.

Lawyers acting for Kernell claim his Acer laptop was infected with unspecified malware in a motion filed on 30 November. However, the malware involved has been isolated and subjected to scrutiny, Security Blanket reports.

Ah, yes, the old "Trojan Horse" defense... Don't laugh. The tactic was successfully employed by lawyers for accused hacker Aaron Caffrey against an indictment that he hacked into the Port of Houston's systems in a denial-of-service attack which crashed the servers that provide navigational data for the Texas port, one of the world's busiest. Incredibly, Caffery was found not guilty by a British jury in 2003. 

We say "incredibly" because expert witnesses found no evidence of Trojan infection on his PC. Even more incredibly, Caffrey served as an expert witness in his own defense. As an "expert" he would have likely known if his computer was infected and would have taken steps to "disinfect" it. Even more incriminating was the fact that Caffrey was a member of a group which called itself "Allied Haxor Elite" and acknowledged that members had a history of hacking into computers in the past.

Caffrey's lawyers somehow managed to convince the jury that their client and his Allied Haxor Elite colleagues had only done their hacking with the permission of computer owners who wanted to "test" their security systems. The missing virus was explained away by "expert witness" Caffrey, who testified that the program "might" have been designed to self-destruct and leave behind no trace of its mischief.

The Register says that in other cases, suspected pedophiles have been cleared by computer forensics after Trojans capable of downloading illicit images were found on their PCs. So apparently in the UK, hackers are judged innocent when malware is found on their computers and also when it is not found on their machines. The British Isles sounds like a hacker's paradise to us.

It remains to be seen whether an American jury will be as lenient in Kernell's case or to what extent, if any, his legal team will use the Trojan Horse defense when his trial begins in late April of 2010. But the alleged Palin hacker's attorneys have laid the groundwork to blame the invasion of Sarah Palin's e-mail account on some "other" anonymous hackers. Poor little David, son of a Democrat politician, you see, was just an innocent proxy.

Riiiight... and we're the Smith Brothers. Try one of our cough drops.

- JP