Cyber crime is a relatively new and rapidly growing area of law. Too many people, and too many lawyers, think that cyber crimes are just like any other crimes. On the surface there are similarities. A fraud committed by a computer looks like a fraud committed by traditional means. The possession of child pornography on a computer looks like the possession of magazines containing child pornography. Just because they look the same, however, does not mean they are the same. Make no mistake, cyber crime is a completely new area of the law with its own laws. It involves new technology and new defenses. It involves knows of concepts like “hacking,” the “deep web,” the “dark web,” “Botnet,” etc. Without knowing what these things are and how they work, an attorney cannot mount a successful defense to the charges.
Cyber crime essentially falls into four major categories: “Hacking” and related offenses; internet frauds and scams; child pornography or possession of other contraband files; and national security offenses. All of these offenses have traditional criminal law predecessors. Hacking is similar to breaking and entering. Traditionally, when law enforcement investigated the criminal law predecessors, they interviewed witnesses and looked for forensic evidence at the crime scene like finger prints. Complicated frauds required a conspiracy to steal large amounts of money, and law enforcement, once they identified one co-conspirator could leverage that “cooperation” to identify others involved in the crime. When the police gather sufficient information to develop “probable cause,” they could obtain a search warrant and find the contraband materials in a target’s residence or business.
When a computer is utilized to commit a crime, however, the evidenced developed and the investigative techniques utilized are different. To most attorneys, the investigative process looks like a black box. Government experts identify a target. A court grants a search warrant. The defendant’s personal computer(s), cell phone(s) and other electronic media are seized. Another government expert “examines” a computer and issues a report saying the target committed the crime. If the defense attorney does not understand the science behind the government reports, he or she can only plead the client guilty or go to trial completely unprepared.
Not All Government Experts are Experts; Not All Government Conclusions are Correct. The problem with relying upon government experts when you are a defense attorney is that not all government “experts” are actually experts, and even those that are make mistakes. Take the case of Michael Fiola, for example. Mr. Fiola was an employee of the Massachusetts Department of Industrial Accidents. During a routine check of his lap top, it was discovered that he had a significant amount of child pornography on his computer. He was fired and the evidence turned over to the district attorney who charged his with several felony violations. Eventually, thanks to fierce representation by defense counsel who understood computer crimes and hire the correct expert, all charges were dropped but not before Mr. Fiola spent $250,000 defending himself. Then there is the case of Julie Amero, a substitute teacher from Connecticut who was charge with Risk of Injury to Minors when a laptop she was using began displaying pornographic images to her students. Her charges were likewise dropped after independent computer experts found a malicious spyware that was downloading the popups without her knowledge.
Unfortunately, Mr. Fiola and Ms. Amero’s cases are not isolated incidences. In fact it is likely that there are many innocent individuals in prison because of faulty investigations and lack of expertise by government experts. And hackers are becoming more sophisticated all the time. Firewalls and other securities measures can be bypassed, and anyone’s computer can be turned into a “Zombie” computer by use of Trojan Horse program. Once this happens, the computer can then be used to perform malicious or illegal acts anywhere in the world without the owner’s knowledge. Even worse, the Trojan Horse program used to take over the computer could be nearly impossible to find and may even disappear after it has completed its function.
International Aspects of Cyber Crime.
Cyber crimes can be committed anywhere, and the U.S. government goes to great lengths to apprehend people anywhere in the world. A cyber criminal in Russia may commit a crime against an American without ever having stepped foot the United States, or he could be “set up” by someone else to look guilty. Much of our clientele is based overseas, and we can and do handle complex cases, wherever they originate from.
The first thing you should do if you are suspected of a computer crime is call us. The pressure to speak with law enforcement officials may be great, but talking to the police is usually not the right thing to do without counsel. Things that are said may be taken out of context; exculpatory comments may not be recorded. Wait for counsel before deciding whether to cooperate or not.
Cyber crimes are serious, and require prompt and aggressive representation by defense counsel. We can help. Please do not hesitate to give us a call.