The 11th Circuit recently held that a suspect need not provide government prosecutors with computer passwords to help them gather evidence. At the same time, a Colorado District Court ordered a fraud defendant to unlock hers. With advancements in computer technology and encryption software, higher courts may have to settle this issue in the near future.

Just a few years ago, forensic computer analysts used special software and equipment, such as Encase Software, to "plug-in" to a suspect's hard drive while executing a search warrant and access or copy any evidence they needed. Now, advanced encryption technologies can prevent access to incriminating information by "splitting" the hard-drive and blocking forensic efforts to those segmented portions. This encryption has left prosecutors without ample evidence to proceed in some high profile cases, and courts have been asked to order the release of computer passwords.

In Florida, the 11th Circuit recently decided the issue in favor of the individual. The Court viewed compelled disclosure of passwords as forced testimony, which is protected by the Fifth Amendment's right against self-incrimination. The Court, however, limited their decision to cases where discovery of incriminating evidence was not a foregone conclusion; meaning, the rule only applies where the government cannot identify or link any incriminating data to the suspect. The rule applied in this case because there was no proof that incriminating data existed on the hard drive, or that the suspect had access to it.

Conversely, the Colorado case involved mortgage fraud defendants, who were linked to the computer and evidence on it during wire-tapped phone calls. Here, the defendant was required to unlock her computer for the prosecutors; she refused to do so, and the 10th Circuit declined hearing her emergency appeal. Subsequently, the defendant's ex-husband and co-defendant provided the government with a list of possible passwords, and they were able to open the computer anyway.

So what is the law then? Can a court require a suspect to disclose his passwords and enable the government to access evidence for use against him at trial? At its core, this act seems like compelling someone to testify against themselves, whether evidence was a foregone conclusion or not. I strain to see the difference between ordering a defendant to disclose passwords or unlock a computer, and forcing them to get on the witness stand under oath and announce their passwords in open court.

Law Clerk Rosie Escobar Brown wrote this blog post. Price Benowitz LLP is a criminal defense and personal injury law firm founded by respected criminal defense lawyer David Benowitz. Please visit our Arlington County criminal lawyer or Montgomery County criminal lawyer sites for more information about our branches in Maryland and Virginia.

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The Department of Justice unsealed a 72-count indictment last week, charging Megaupload.com executives with numerous counts of copyright infringement, piracy, conspiracy, money laundering, and racketeering. The indictment alleges that Megaupload reaped 175 million dollars in profits at the expense of copyright holders and website subscription members.

Megaupload was a global file-sharing website, who charged members a monthly subscription fee for access to unlimited music, movies, and television downloads and streaming video. However, while members were paying Megaupload for this service, Megaupload did not pay anyone for their copyrights. The website's owners, several located in New Zealand, lived in the lap of luxury and drove Rolls Royce and Maserati cars with personalized license plates donning phrases like "Mafia Hacker" and "Guilty." DOJ estimates approximately 500 million dollars in damages resulted from Megaupload's scheme.

The franchise used web servers in Eastern Virginia, enabling the charges to be filed there in federal court.

Several commentaries have argued that recent court decisions making international securities violations that occur overseas inaccessible to U.S. prosecutors will shield Megaupload from criminal convictions. While good criminal defense attorneys will make this argument, international money laundering is still a very serious crime and will be difficult to defeat.

DOJ shut down Megaupload's various websites upon releasing the indictment and issuing arrest warrants, sparking public debate with political hacktivist group "Anonymous." The group, garbed in their trademark Guy Fawkes masks, issued retaliatory statements against internet censorship and copyright laws, and promptly shut down several government and entertainment industry websites. The DOJ and Universal Music websites were down for what seemed like an entire day. Little does Anonymous know, each time one of their members buys a Guy Fawkes mask, Time Warner collects fees on their copyright license.

The evolution of this case and the political chatter surrounding it should be entertaining to say the least.

This blog post was written by law clerk Rosie Escobar Brown. Price Benowitz LLP was founded by federal criminal lawyer David Benowitz. The firm also handles cases in both Maryland and Virginia. Please contact our Fairfax criminal lawyers or Howard County Criminal Lawyers for more information on attorneys in those states.

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In 2010, Washington, D.C. ranked third on the list of cyber-crime hot spots out of 50 U.S. cities, outranked only by Boston and Seattle. White collar crime is quickly evolving from securities and mail fraud to computer and wire fraud. In this technologically charged era, most white collar offenses are facilitated through the use of interstate computers, and federal law carries particularly heavy penalties for these types of crimes.

The problem with these heavy penalties is that potential sentences coax defendants into entering plea bargains with the government, rather than taking a risk and exercising their constitutional right to a trial by jury with the help of a criminal defense lawyer. When facing 25 years in a federal penitentiary if unsuccessful at trial, defendants opt for the 3 to 5 year plea offer that is on the table instead. Federal prosecutors often "stack" charges, alleging numerous criminal violations in one indictment including computer and wire fraud, money laundering, conspiracy, or even stretch the gambit to press racketeering charges where it may not be warranted. This stacking technique results in exorbitantly high sentence possibilities and often leaves suspects with nothing but a Hobson's choice to determine their fate, forced to choose with no real options.

Some who are suspected of cyber-crime did not intend to commit a crime at all, but merely used their tech-savvy skills to access a particular network. All it takes is affecting 10 or more computers or more than $5,000 in system repairs for this act to become a felony, and ISP tracing methods make it easy for the feds to locate the person responsible.

Similarly, some executive white collar defendants are charged with crimes that they were unaware of. Most executives trust that their employees will discover and alert them of fiscal anomalies and avoid inappropriate transactions. While the employees may not uncover mix-ups, the federal authorities certainly will and computer networks make it easy to do so.

Mail fraud in the traditional sense rarely occurs anymore. Gone are the days of affixing a stamp to an envelope. Instead, people are using the internet to communicate and mail fraud is quickly being replaced with wire fraud. Where computers are involved in the commission of an offense, inflated federal penalties will accompany criminal charges.

Admittedly, uncountable crimes have occurred when computer hackers both intended to do harm and retrieved data for unscrupulous use. Most recently, the internet retail shoe giant Zappo's experienced a security breach, where a hacker accessed the database and retrieved private information about 24 million consumers. Even in this case, however, the authorities have not located the hacker. As a die-hard optimist, I imagine some brilliant college student testing out new skills and haphazardly accessing this information only to exit the network without saving or using any of the data. Unfortunately, in the eyes of federal law even this act would constitute a felony regardless of an absence of criminal intent, as Zappo's is spending huge amounts of money re-securing their system and addressing the backlash from consumers. In the eyes of the law, the intent to cause damage need not be present, only the intent to access information does.

Computers facilitate so many crimes that a majority of Americans have a legitimate fear of identity theft. In an effort to educate Americans on how to protect themselves, Google launched a nationwide campaign on how to keep internet activity and identity information secure on the web. With more than four billion computers connected to the web, it is no surprise that computer crimes of all shapes and sizes have arisen as a new white collar trend. Likewise, it is no surprise that the feds would institute weighty sentences and strict liability laws to deter such crimes from occurring.

This blog post was written by Rosie Escobar Brown, a law clerk at the law firm Price Benowitz LLP. Founded by DC criminal defense attorney David Benowitz, the firm handles criminal, personal injury, and immigration cases. We also have attorneys in Maryland and Virginia, so please contact our Falls Church criminal lawyers and Baltimore criminal lawyers for more information on those offices.

Continue reading "Computer Crimes Rising on List of White Collar Offenses" »