Review of Federal Computer Hacking Crimes and Defenses
Computer hacking is a type of white collar cybercrime and a term used to describe an act of gaining unauthorized access to a computer system in order to steal or alter the data.
Many types of internet crimes related to theft and fraud often involve hacking a computer to gain unlawful access to a private network of a business or corporation.
Computer hacking under 18 U.S.C. § 1030 and other related internet crimes often cross state lines due to the fact the computers in question are located in different states, meaning this type of white collar fraud crime can be prosecuted in a federal courtroom.
The federal crime of computer hacking is normally prosecuted under the Computer Fraud and Abuse Act.
Provisions under 18 U.S.C. § 1030 include many different types of computer crimes.
Often in federal computer hacking cases, it entails unlawful access to a United States Government or business computer system, with the:
- specific intent to commit fraud,
- obtain something of value, or
- intent to cause harm.
Most computer hacking incidents are prosecuted in local state criminal courts, but there are specific situations where charges can be filed by a federal prosecutor.
For example, violating federal laws on computer hacking could occur if somebody sends an email with a malicious virus with intent to gain access to a computer.
It's important to note that a perpetrator doesn't have to actually complete the act of hacking of a computer to get arrested, charged, and convicted with a federal computer hacking case.
Computer Fraud and Abuse Act
In 1986, Congress passed the Computer Fraud and Abuse Act (CFAA), now codified under Title 18 U.S. Code § 1030.
This law makes it a federal crime to gain unauthorized access to “protected” computers (otherwise known as “hacking”) with the intent to defraud or do damage.
It also makes it illegal even to conspire or attempt to commit hacking, even if you didn't follow through with it or were not successful.
If you are charged with federal hacking crimes under 18 U.S.C. § 1030, you could face up to a year in federal prison for lesser offenses, between 10-20 years for more serious offenses, and even life in prison if the hacking resulted in someone's death.
Related crimes to federal computer hacking include conspiracy to commit computer hacking, distribution of confidential computer data, sending large amounts of SPAM emails, and unlawful access to stored communications.
The federal hacking law is considered a “gap-filling” law, meaning it is not a comprehensive law against all cybercriminal activities.
Instead, 18 U.S.C. § 1030 is designed to fill gaps and close loopholes left by other laws involving computers, including, but not limited to:
- 18 U.S.C. § 1028 – identity theft,
- 18 U.S.C. § 1029 – credit card fraud,
- 18 U.S.C. § 1341 – mail fraud,
- 18 U.S.C. § 1343 – wire fraud,
- 18 U.S.C. § 1344 – bank fraud,
- 18 U.S.C. § 472 – counterfeiting,
- 18 U.S.C. § 372 – conspiracy.
As a result, many people charged with hacking may also face additional charges for violations of other federal laws like those listed above.
What Is a Protected Computer?
Most computers are considered “protected” under 18 U.S.C. § 1030. The law defines “protected computers” as falling within the following categories:
- government computers,
- computers used by banking/financial institutions,
- computers that affect government or financial institutions, and
- computers that are used in or affect interstate/foreign commerce and communications.
Under these definitions, aside from computers used by banks and the federal government, almost any computer connected to the Internet may be categorized as a “protected” computer—one in which hacking is a federal crime.
What Activities Constitute Illegal Hacking?
Under the federal hacking law, the following activities are considered illegal acts of hacking:
- simple hacking (aka, “computer trespassing”) of a government computer,
- an act of hacking that unlawfully accesses or retrieves protected government, financial, commercial, or credit information (ranging from national security secrets to consumers' private banking information),
- doing damage to a protected computer (typically through viruses, malware, etc.),
- using a protected computer to commit fraud,
- threatening to cause damage to a protected computer (e.g., through ransomware),
- trafficking passwords for protected computers,
- using a computer to commit espionage (i.e., spy unlawfully).
As stated above, it should also be noted again that the law makes it a crime to commit these acts or conspire or attempt to commit them. Thus, if you attempt to hack into a computer but fail to do so, you have still committed a federal crime.
How the Federal Government Penalizes 18 U.S.C. § 1030 Hacking Crimes
There is a wide range of possible penalties, including fines and jail time, for a federal hacking conviction, depending on factors such as:
- the severity of the offense,
- the monetary value of the information stolen, and
- whether this is the first offense.
For minor cyber-trespassing offenses that do fairly little damage, you may face a year or less in jail for a first offense.
For more serious offenses, you could face between 5 and 10 years in prison, and up to 20 years in prison if there are prior convictions. You could also be fined up to $10,000.
There are also some sentencing enhancements, such as if the computer hacking was accomplished to commit another crime, like credit card fraud and identity theft.
Defending Against Charges of Computer Hacking
While the federal government takes cybercrime very seriously, a skilled federal criminal defense attorney can often mount a successful defense against 18 U.S.C. § 1030 federal hacking charges. Some common strategies include:
Lack of intent
The burden of proof is on the federal prosecutor and they must prove all the elements of the crime beyond any reasonable doubt to obtain a conviction.
In a computer hacking case, they must have the evidence to prove you knowingly and intentionally hacked a computer.
Since the prosecution must demonstrate intent to commit computer fraud, we might be able to show that there was no such intent. For example, inadvertently clicking an email attachment that releases malware into a computer network.
Illegal search and seizure
Additionally, if law enforcement or investigators violated protocols in gathering evidence, or if the evidence itself doesn't prove guilt beyond a reasonable doubt, we might be able to get the charges dismissed due to a violation of the Fourth Amendment of the United States Constitution.
Other potential defenses against 18 U.S.C. § 1030 federal computer hacking charges include you didn't unlawfully access the computer, or you had a good-faith belief you had authorization to access the computer.
Further, we might be able to argue your computer was accessed by someone else who committed the hacking, or perhaps you are the victim of a false accusation.
If you are accused of 18 U.S.C. § 1030 hacking crimes in California, you should seek to hire a criminal defense attorney as soon as possible, preferably one with experience in federal courts.
It might be possible to negotiate with the federal prosecutor for a favorable plea bargain or even a case dismissal.
Involving our criminal lawyers early in the case can greatly improve your chances for the best possible outcome.
The Los Angeles based criminal law firm at Eisner Gorin LLP has an excellent track record in defending against federal criminal charges, including computer hacking.
Contact us at (310) 328-3776 for a consultation.