Potential Defenses That Can Be Used to Defend Someone Accused of a Cybercrime

Possible defenses vary according to the case. Many cybercrimes like hacking or computer tampering hinge on a defendant’s knowledge that their actions are against the law and must be committed intentionally. In some cases, the defense may argue that no law was violated since the defendant believed he or she was dealing with legitimate software. Another possible defense is that a defendant had authorization, meaning they were authorized to access the computer or a database. Another possible defense is to claim that the Defendant was forced to commit some cybercrime. I had a case where my client alleged that he was kidnapped and forced against his will to commit various cybercrime.

What Are Some Penalties Associated with a Cybercrime Conviction at the Federal Level?

Federal sentencing is regulated by the federal Sentencing Guidelines, which are annually updated and published by the Congressional Sentencing Commission. Although the guidelines are now optional, many federal judges still closely follow its sentencing recommendations. Congress sets a minimum punishment and a maximum punishment for all federal criminal statutes. Sometimes a statute has a mandatory minimum sentence, in which case a Judge cannot give a sentence below the mandatory minimum. In most federal cybercrime cases sentencing can range from zero to twenty years, because of this vast range, parties and Courts use sentencing guidelines to come up with the most appropriate and fair sentence.

The biggest factor in determining the guideline sentence in a cybercrime case is the amount of losses intended to be caused by the defendant. Did the defendant cause losses totaling hundreds of thousands of dollars, or did they cause loss amounts amounting to a few hundred million dollars? I had a case where the loss amounts were $300 million.

Another important factor is the role of the defendant in the criminal scheme. Was the Defendant leader, a supervisor, manager, or a low-level associate. Other factors guidelines consider are how many victims were there, the criminal record of the defendant, and whether the means to commit cybercrime are considered sophisticated, which almost always they are. Prosecutor and defense counsel will all argue for or against those factors, and the Judge will make the final determination and then sentence the defendant accordingly.

When calculating loss mounts it is particularly important to understand how to do it properly under the sentencing guidelines. By default, loss amounts equal to the total amount of losses intended to be caused by the defendant. Let’s say their actual loss was $10,000, but if the losses were intended to be $100 million, the defendant will be held responsible for causing $100 million losses. Sometimes it is not possible to determine the loss indented by the defendant, in which case other methods will be used, such as what did the defendant gain from the scheme or the actual loss caused to the victim.

When it comes to access devices, such as credit or debit cards, the sentencing guidelines sets the loss amounts at $500 per access devices, which leads to many unfair sentences for cybercrime defendants. It may only take a hacker a few seconds to get hundred thousand credit card numbers on their computer. Let us assume that from each credit card the defendant only gained $2, which means that the defendant gained $200,000, and the credit card company lost $200,000. However, because the law set the loss amount as $500 per card, the total intended loss amount under the sentencing guidelines will equal to $50 million. This rule has been widely criticized as it leads to very high sentences in cybercrime cases.

For more information on Defenses and Sentences in Cybercrime Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 989-2908 today.

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