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It might seem obvious to most people that the hacker who gained unauthorized access to the private e-mail account of Republican vice-presidential candidate Sarah Palin violated the Stored Communications Act.

Under that law, a violation is committed by anyone who “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;” or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains...[an] electronic communication while it is in electronic storage in such system.”

But Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation, says not so fast.

Although the law seems clear on such a matter, the Department of Justice has taken a position on the law that could thwart its own prosecution of the hack under the SCA.

Before anyone jumps to conclusions, the hacker could still be prosecuted under the Computer Fraud and Abuse Act.

Mark Rasch, a former Justice Department computer crime prosecutor, agrees with Opsahl.

"While the DOJ guidelines are not binding on the DOJ, they certainly have persuasive authority," he said. "In this case I think the DOJ would be bound by its own interpretation of the statute and probably could not prosecute (the hacker under that statute) simply because of its own interpretation of the statute."

As mentioned above, the hacker could still be prosecuted under the CFAA, though likely for a misdemeanor, not a felony, since there was no actual loss that resulted from the hack. More specifically, he'd be prosecuted under 18 U.S.C. 1030(a)(2)(C), accessing a protected computer without authorization to obtain information.

Rasch says if the hacker were charged with a misdemeanor, he would likely face a sentence of zero to six months, depending on his history, attitude and contrition. If the hacker were to come forward and apologize to Palin and tell the FBI exactly what he did, prosecutors might take this into consideration.

"If the government treats this for what it really is, which was a kid who was curious to see if he could do this . . . then the kid should be in reasonably good shape" and face "little, if any, jail time," Rasch said.

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