Cyber crime defense

A cyber crime is a crime where a computer is used to commit an offense or is itself the object of the crime. Stated differently, a cyber crime is criminal activity that involves the use of a computer, servers, and the internet.

There are several Federal statutes that apply to cyber crime cases.

The Computer Fraud and Abuse Act, 18 USC 1030 (CFAA), criminalize many activities done after intentionally accessing a computer without authorization or by exceeding authorized access, such as:

  • Obtaining National Security Information;
  • Computer Intrusion and Obtaining Information;
  • Trespassing in a Government Computer;
  • Computer Intrusion to Defraud and Obtain Value;
  • Computer damaging;
  • Trafficking in Passwords;
  • Threatening to damage a Computer.

 

The penalties for a violation of the CFAA range from 1 to 10 years in jail, and even up to 20 years for certain repeated violations.

In addition, Federal indictments often charge computer crimes under the CFAA along with Wire Fraud, Identity Theft, and Money Laundering.

Virtually every cyber crime investigation is conducted by the FBI, which is known for enlisting the best cyber crime experts. In all cyber crime cases, the evidence collected by the FBI generally consists of hundreds of Gigabytes (if not Terabytes) of electronic files, forensic data and reports. Winning a Federal trial is almost impossible, given the fact that the federal government has virtually unlimited resources.

The Federal Court conviction rate was 99.8% in U.S. federal courts in 2015 (guilty pleas and trials): 126,802 convictions and 258 acquittals.

In theory, the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. In practice, only 1.6% of federal court defendants whose case was adjudicated had a jury trial in 2015.

The reason is straightforward: only 258 of the 3,024 defendants who went to trial in 2015 were acquitted. With less than 1 out of 12 chances of acquittal, it is a shaky roll of the dice for a federal criminal defendant to go to trial.

ACCUSED OF COMPUTER HACKING OR OTHER CYBER CRIME?

If you are accused of any Computer Intrusion crime under the CFAA, you should seek representation from an attorney with proven computer skills and trial experience.

With such incredibly high Federal conviction rates, very few attorneys can say to have ever represented an alleged cyber criminal at trial. I am not aware of anyone that was acquitted in a jury trial of Computer Fraud and Abuse Act charges (but please email me if you know of anyone).

THE CLICK FRAUD TRIAL

Has any other lawyer beat cyber crime felony charges at trial?

Click fraud occurs on the pay-per-click (PPC) online advertising. In this type of advertising, the owners of websites that post banners are paid an amount of money determined by how many visitors to the sites click on the ads. Click fraud takes place when someone, through the use of an automated script, robots, or other software, generates clicks on such a banner to increase the payable number of clicks to the advertiser, and without having actual interest in the target of the banner’s link.

Click fraud has been around since Google AdWords launched back in the early 2000’s, and click fraud schemes have become increasingly more sophisticated over the years.

While the government has secured dozens of guilty pleas related to click fraud, none of these cases was ever tried in a Federal Court until the case against Fabio Gasperini. A five-count indictment had charged Gasperini with setting up and operating a worldwide botnet of more than 140,000 computers to carry out a click-fraud and money laundering scheme. Read the indictment

I represented Fabio Gasperini in the first ever “click fraud” trial. The case was being closely watched by cybersecurity experts who say it was the first trial to test the government’s ability to tie individuals to complex cybercrimes. If convicted of Wire Fraud, Computer Intrusion, and Money Laundering as charged in the indictment, Gasperini faced up to 70 years in jail.

During the two-week trial, the government called over 20 witnesses, including the Director of the Internet Storm Center, FBI Computer Scientists, and foreign law enforcement authorities. I extensively cross-examined all the expert witnesses for the government, pointing out all the flows of their testimony and forensic analysis. Read my cross-examination of the government’s leading witness.

After 2 days of deliberations, the jury returned a not guilty verdict on all the felony counts of the indictment. Read the verdict sheet. Gasperini was convicted of a single misdemeanor count of Computer Intrusion under 18 USC 1030(a)(2) and sentenced to 1 year in prison, the maximum statutory term. At the time of the verdict, Gasperini had already served more than 1 year in pre-trial detention (mostly while fighting extradition to the U.S.), so the impact of the conviction was minimal.

Wall Street Journal

Wall Street Journal

Law360

Law360

The case is not over yet, as Gasperini has appealed his misdemeanor conviction to the U.S. Court of Appeals for the Second Circuit (case number 17-2479).

CNN

CNN