Oh, I see what you did there...

A surprise legal maneuver by the defense in the Sarah Palin hacking case could undermine key charges carrying the stiffest potential penalties.A lawyer for the Tennessee college student charged with hacking into the Alaska governor’s Yahoo e-mail account last year says his client couldn’t have violated Palin’s privacy because a judge had already declared her e-mails a matter of public record.“He’s not suggesting that e-mail can’t be private,” says Mark Rasch, a former Justice Department cybercrime prosecutor. “He’s saying this particular e-mail was not private or personal because of who she is and because it wasn’t intimate communication. ”Additionally, photos that 20-year-old David Kernell allegedly obtained of Palin and her family were not private since the Palins are “the subjects of untold numbers of photo-ops,” the lawyer argued last week, in one of a slew of motions and memorandums attacking the government’s four-count federal indictment against Kernell.Threat Level broke the story last September that a hacker had obtained unauthorized access to Palin’s Yahoo e-mail account — gov.palin@yahoo.com — by using publicly available information to reset her password to “popcorn.” The intruder then posted screenshots of Palin’s e-mail, as well as her new password, to a forum at 4chan.org under the handle “Rubico,” enabling other intruders to access the account. Bloggers quickly traced the name Rubico to an e-mail address that Kernell was known to use.Last October, federal prosecutors in Tennessee had Kernell indicted on one felony count of violating the Computer Fraud and Abuse Act. Then in March prosecutors filed three more charges— one count of identity theft for allegedly impersonating Palin to access her e-mail account; one count of wire fraud for allegedly scheming to defraud Palin of property by obtaining information from her account and posting it to a web forum; and one count of obstruction of justice for allegedly destroying evidence.Now defense lawyer Wade Davies is asking a federal judge to dismiss all of the charges on various grounds, with particular attention to the hacking and wire fraud charges. The attorney’s pretrial arguments provide insight into his defense strategy should the matter proceed to trial.