Computer Crimes

The Encryption Debate – Once Again, Technology Outpaces the Law

March 6, 2016 | By James S. Friedman, LLC

A US Magistrate Judge in California ruled recently that technology giant Apple could be required to create specialized software to help federal investigators bypass the security protocols on the encrypted Iphone 5S used by Syed Farook, one of the San Bernardino shooters. This ruling conflicts with the ruling of a US Magistrate Judge in Brooklyn, who found that he could not order Apple to take steps to bypass the security features of an Iphone seized during an earlier drug investigation.

The media coverage of the more recent San Bernardino case has been far more extensive because it involves the December 2, 2015 mass-shooting committed by a married couple who were radicalized by ISIS. The facts and events giving rise to the older Brooklyn case are far more ordinary. But for the Iphone issue, that matter arises from just another relatively routine federal narcotics investigation – one of who-knows-how-many that play out in federal courts across the country every single day.

But a review of the ordinary drug case reveals far more about the development of the cell phone security issue that is at the heart of this debate. The drug case involves an alleged methamphetamine dealer named Jun Feng, who’s phone was seized during the 2014 search of his Queens, New York residence. Investigators sought to access his phone to obtain information that is fairly routine in drug cases, such as contact lists. According to prosecutors in that case, Apple had assisted federal agents in extracting information from Iphones tied to criminal investigations approximately 70 times in seven years. To law enforcement’s surprise, Apple suddenly changed its position as to such issues in Feng’s case. Feng entered a guilty plea last October, but attorneys for both Apple and the Government continued to press the Court for a ruling and the Court ruled against the Government. Continue reading ›

Computer Crime Increasing in Frequency, Magnitude and Sophistication

December 11, 2015 | By James S. Friedman, LLC

The United States Attorney’s Offices for the Southern District of New York and the Northern District of Georgia recently announced three indictments charging several defendants with, among other things, computer hacking, theft and fraud. [US v. Shalon, No. 15-cr-00333 (S.D.N.Y.); US v. Murgio, No. 15-cr-00769 (S.D.N.Y.); and US v. Shalon, No. 15-cr-00393 (N.D.Ga.)] More specifically, the grand juries hearing these cases charged the defendants with computer hacking, securities and wire fraud, identity theft, illegal internet gambling, conspiracy to commit money laundering, and operating an unlicensed money transmitter. These cases are noteworthy not only because of the sheer magnitude of the enterprise described by federal prosecutors, but also because of the manner in which they highlight the increasingly aggressive posture that the Justice Department continues to take toward cybercrime.

According to the US Attorney, the defendants hacked into the computer systems of several large financial services companies and financial news publishers. Federal prosecutors did not identify the companies involved, but other news sources identified at least some of them as JPMorgan Chase, ETrade, Scottrade, TDAmeritrade, Fidelity Investments, and Dow Jones. The defendants allegedly stole personal information for more than 100 million people and used it to, among other things, market securities in a deceptive manner by arranging to have prospective purchasers cold-called.

The defendants’ other activities allegedly included operating illegal online casinos, payment processing for criminals, operating an illegal bitcoin exchange, and laundering money through up to 75 shell companies and accounts around the world. In the course of doing so, the defendants purportedly procured and used over 200 false identification documents which included over 30 false passports issued by almost 20 different countries, as well as servers located in Egypt, the Czech Republic, South Africa, Brazil and other countries. The US Attorney believes the defendants generated hundreds of millions of dollars in illegal proceeds. Many of the charged offenses carry federal prison terms of 20 years. Continue reading ›

Elonis v. United States – Watch What You Put on Social Media

June 25, 2015 | By James S. Friedman, LLC

A federal statute (18 U.S.C. Sec. 875(c)) makes it a crime to transmit in interstate commerce communications containing threats to injure someone. Anthony Elonis, who was an active Facebook user, placed posts on his Facebook page that purportedly threatened patrons and employees of the park where he worked, his ex-wife, police officers, and school-age children. His online activities were eventually brought to the attention of the FBI. An agent created a Facebook account to just to monitor Elonis’ online activities. The agent later visited his home, after which Elonis posted material on his page threatening her. A grand jury charged Elonis with five counts of violating the above-referenced statute. He went to trial and lost, was sentenced to a custodial term of almost four years with three years of supervised release, and the Third Circuit Court of Appeals affirmed.

At this point, some legal background is unfortunately necessary. Every crime consists broadly of two parts – a physical act or acts and a particular mental state. The act or acts have to be accomplished with the required mental state in order to constitute a crime. Some criminal statutes will say specifically which mental state is required in order to make out that particular offense (e.g., purposely, knowingly, recklessly, intentionally). But not every criminal statute defines the required mental state. The statute that Elonis violated did not include a particular mental state, and the question before the Court was which mental state was required to support the conviction and whether or not Elonis’ jury was properly instructed on this issue. The Court ultimately found that the jury instruction was defective, reversed the Third Circuit’s decision, and remanded the case for further proceedings.

The Court’s decision contains a terrific analysis of the interplay between mental states and potentially criminal conduct, and how to ascribe a particular mental state to a set of potentially criminal acts when the statute in question is silent on this issue. All of that will certainly be of great interest to lawyers and judges but, given the prominent role social networking sites play in our daily lives, what does this case mean for the average user of these electronic media? Continue reading ›