Are All Cybercrimes Charged as Felonies in New York?
Unless a cybercrime involved only petty, local theft, it will be charged as a felony in New York. I usually handle major cybercrime cases involving international defendants. These crimes take a lot of time and money to investigate, and the federal government would only spend a lot of their resources on people who have caused major losses, may be a threat to national security, or could be involved in election meddling or other major cybercriminal activity. Most cybercrimes are charged as felonies because no one is going to spend millions of dollars on investigating a misdemeanor. When cybercrime is charged as a misdemeanor, its usually on the state level.
What Makes a Cybercrime a Federal Charge Versus a State-Level Charge?
When any crime—not just a cybercrime—crosses a state line, it automatically becomes a federal crime. The nature of cybercrime is such that we are talking about internet wires going between countries, continents, and states; almost always cybercrimes require the crossing of state and international boundaries. As a result, it is quite easy for the FBI and Secret Service to bring federal charges. In addition to that, there are numerous federal statutes outlawing cybercrime.
What Factors Could Potentially Enhance or Aggravate a Cybercrime?
The loss amounts could potentially enhance or aggravate a cybercrime. The US sentencing guidelines list other factors as well, such as how many victims there were, the degree of sophistication of the crime, and whether the person was a leader, manager, or supervisor. The biggest factor is the loss amounts. Was it $500,000, millions of dollars, or hundreds of millions of dollars? I handled a case where the loss amount was $300 million, and another case where the loss amount was $160 million. The loss amounts will be a main factor in determining someone’s sentence, whether that person lost a jury trial or took a plea.
There is often a disagreement between the defendant and the government with regard to the loss amount. The government usually wants it to be very high, while the defendant wants it to be very low. As one potential compromise, sometime the parties will leave the loss amounts undetermined in order allow the court to determine the loss amounts after hearing arguments from both sides. However, the presumed loss of $500 per access device makes it tough when it comes to calculating loss amounts vis a vis defendants. The presumption is that for every single credit card that the person stole, the loss was $500, but the nature of cybercrime is that within a second or two, 10 million credit card numbers, social security numbers, addresses, etc. could be stolen. This information could be bought for $100,000 and resold on a dark forum website for $500,000, but due to the presumption of $500 in losses, the individual could be charged with causing losses in the hundreds of millions of dollars, and their sentence would increase substantially. This presumption has been criticized by many scholars, judges, and experts, because it basically creates artificial loss amounts, and as a result, substantially increases sentences. That’s a problem.
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