Your home or business was just visited by the cybercrimes task force who, armed with a search warrant, took all your electronic devices, external hard drives, disks, flash drives, and cell phones. They could be looking for anything. Child pornography. Hacking technology. Trade secrets.
Whether you were either arrested or just released or investigated for possession or distribution of child pornography continuing or charged with any variety of computer or internet federal criminal offenses, you need to have a federal criminal defense attorney there to protect you. Just as the internet has dramatically evolved, allowing the accessibility, availability, sheer volume, and exchange of images and videos, law enforcement investigation has evolved as rapidly.
Child pornography is a crime that includes the knowing possession, distribution, or manufacture of sexually explicit material — typically picture images and video — involving children under the age of 18 posing naked or involved in sexual activity. Sexting even a partially nude picture of a minor can get you charged with this crime. The mere accusation alone can ruin your professional reputation and your personal life.
The penalties in federal courts for conviction of child pornography can be severe, including 10 year minimum sentences under the United States Federal Sentencing Guidelines for distribution. Peer to peer networking has allowed the federal prosecutors a platform to argue that a person knowingly distributed material. Other sentence enhancements increasing the possible length of incarceration can be if the age of a child is less than 12, the total number of images, use of a computer, and whether there is sado-masochistic or violent conduct depicted.
Unauthorized Computer Access
The explosive growth of the Internet has made information an increasingly valuable commodity. In turn, safeguarding information stored on computers is a constant challenge and has resulted in the development of a multi-million industry dedicated to computer and Internet safety.
The main anti-intruder law is 18 U.S.C. § 1030. This statute was first enacted as the “Computer Fraud and Abuse Act of 1996.” The statute was amended in 2001 and 2002. The most significant changes have been increasing penalties for hackers who damage computers, clarifying the intent element of such crimes, and providing that damage caused to separate computers can be aggregated for purposes of satisfying the statute’s jurisdictional threshold.
Examples of violations of section 1030 include:
(1) hacking into a protected computer to steal information;
(2) destroying data or damaging hardware on protected computers by transmitting commands (e.g., virus or worm);
(3) “denial of service” attacks against protected computer;
(4) extortion based on threat to crash protected computer;
(5) attempts are also covered under§ 1030(b).
Title 18 U.S.C. § 1030(a)(2) prohibits unlawful access to confidential data or information. A violation of this subsection is a misdemeanor with a punishment range of not more than one year imprisonment and/or a $100,000 fine. However, if this offense was committed for purposes of commercial advantage or private financial gain, and the value of the information obtained exceeds $5,000, the offense becomes a felony with a penalty range of not more than five years imprisonment and/or a $250,000 fine.
Section 1030(a)(4) establishes the offense of computer fraud. It requires that the government prove that, in furthering an intended fraud, the accused knowingly accessed a protected computer without proper authorization and obtained something of value. If the only thing obtained is the use of the computer, the value of such use must have exceeded $5,000 in any one-year period. The $5,000 figure was designed to limit the application of this felony to the more serious offenders and was generally tailored to protect “supercomputers”. This section targets both outsiders and insiders, and provides for a maximum sentence of not more than five years imprisonment.
Section 1030(a)(5) is probably the most commonly prosecuted “hacking” subsection. Under § 1030(a)(5)(A)(i), an offense is committed if a person “knowingly causes the transmission of a program, code, information, or command to a protected computer” and intentionally causes damage. Section 1030(a)(5)(A)(ii) criminalizes accessing a protected computer without authorization and recklessly causing damage. Section 1030(a)(5)(A)(iii) criminalizes intentionally accessing a protected computer and causing damage.
The 2001 Act increased the punishment for a violation of § 1030(a)(5)(A)(i) — intentionally causing damage — from not more than five years imprisonment to not more than ten years imprisonment and/or a $250,000 fine. The punishment for a violation of § 1030(a)(5)(A)(ii)– recklessly causing damage — is not more than five years imprisonment and/or a $250,000 fine. A second violation (including a violation after a prior felony conviction for a state computer hacking crime) carries a more severe maximum punishment. A violation of§ 1030(a)(5)(A)(iii) — causing damage — carries only a misdemeanor level of punishment.
Title 18 U.S.C. § 1030(a)(6) prohibits trafficking in computer passwords. The “Access Device Fraud Act” at 18 U.S.C. § 1029 prohibits both trafficking and possession of unauthorized computer passwords. Section 1030(a)(6) establishes trafficking in computer passwords as a misdemeanor and requires that the government prove: (1) that the accused knowingly obtained and transferred or disposed of passwords of another; (2) that the accused did so with the intent to defraud; and (3) that this conduct affected interstate or foreign commerce or that the computer is used by the United States Government.
Title 18 U.S.C. § 1030(a)(7) prohibits computer extortion, which carries up to five years imprisonment and fine for the first offense. The elements of this offense are: (1) to transmit in interstate or foreign commerce a communication that contains a threat to cause damage to a protected computer; and (2) that the threat is made with the intent to extort money or other thing of value from any person or entity.
This section was enacted in response to actual cases where intruders would break into others’ computer systems and encrypt their data so that the computer system was rendered inoperable and then demand money for the key to unencrypt the information.
Your Best Defense For Computer and Internet Charges
A thorough, confidential discussion with you is the foundation to formulating your defense. Potentially, the involvement of a forensic analyst may be critical to understanding how the material came to be on your computer. Defenses to consider may include:
• Illegal search and seizure-was the evidence obtained unlawfully? Was the search warrant defective? Were there any untruths that were sworn to creating a 4th Amendment argument that the evidence was seized in violation of your Texas and US constitutional rights? Did the police exceed the permitted scope of the Judge’s warrant and take materials that they were not authorized to seize?
• Actual innocence/Lack of Intent -Did you accidentally mis-type a web address? Haven’t you ever inadvertently typed a website address that is off by one letter and a completely different website other than the one you intended flashed on your screen? The same might have happened in your case. Did inappropriate spam or an unwanted pop-up create this nightmare? Did a co-worker use your computer rather than theirs to download child pornography?
• Were you framed? Did somebody falsely accuse you and set you up by planting the material on your computer and then anonymously calling law enforcement?
Do not wait until law enforcement officals show up at your door with an arrest warrant. If you have been contacted by any law enforcement agent or otherwise suspected of any type of internet or computer crime, you need to have an attorney to advise you and protect your right. Brent Mayr, Paul Schiffer, and Richard Esper are available to assist.