Cybercrime and Digital Fraud: Defense Strategies for the Digital Age

A defendant who is charged under the Computer Fraud and Abuse Act for accessing a computer system without authorization must challenge the government's interpretation of what constitutes authorized access, because courts have divided sharply over whether mere violations of employer policies or website terms of service rise to the level of criminal CFAA violations, and cybercrime counsel defending a CFAA charge must evaluate whether the defendant had implicit or explicit authorization from the computer system's owner at the time of the alleged access and whether the government's charging theory would criminalize conduct that is routine in the industry in which the defendant operates.

A defendant in a cybercrime or digital fraud prosecution must challenge the government's evidence of the specific intent required for conviction, because many digital incidents that appear sinister result from security vulnerabilities, misconfigurations, or user error rather than criminal planning, and cyber security crimes counsel advising on the defense of a cybercrime prosecution must evaluate whether the government's theory of criminal intent is based on the defendant's actual mental state or on circumstantial inferences that a properly instructed jury could reject.

A business that has suffered losses from a business email compromise attack or a phishing scheme must evaluate its own legal exposure to regulatory sanctions, as well as its rights against the perpetrators and the financial institutions that processed the fraudulent transfers, and internet fraud counsel advising on the legal dimensions of a BEC or phishing incident must evaluate whether the victim company's own due diligence procedures for verifying payment instructions were sufficient to satisfy any applicable standard of care and whether the financial institutions that processed the fraudulent wire transfers can be held liable for failing to implement adequate fraud detection controls.

A victim of a cryptocurrency fraud scheme has several legal tools available to trace and recover stolen digital assets, including emergency injunctions that freeze assets in identifiable wallets, civil forfeiture proceedings that allow law enforcement to seize cryptocurrency, and international mutual legal assistance requests, and cryptocurrency fraud counsel advising on asset recovery must evaluate whether blockchain analytics can establish the flow of funds from the victim's wallet to the wallets currently holding the stolen assets and whether the jurisdiction where the assets are held has a legal mechanism for freezing cryptocurrency assets pending the outcome of civil or criminal proceedings.

A defendant in a cybercrime prosecution who challenges the integrity of digital evidence must demonstrate that the government's collection and analysis methodology created an unacceptable risk that the evidence was altered or misidentified between the time of collection and its presentation at trial, and eDiscovery counsel advising on digital evidence challenges must evaluate whether the forensic image of the device was created using a validated write-blocking methodology and whether the hash values calculated at the time of collection match the hash values of the evidence as presented.

A company that is subject to a cybercrime investigation spanning multiple jurisdictions must manage the conflict between the data production obligations imposed by the investigating authority and the data protection rules of the jurisdiction where the relevant data is stored, and privacy and data protection counsel advising on a cross-border cybercrime investigation must evaluate whether the requested data transfer satisfies the adequacy or derogation requirements of applicable data protection laws and whether the investigating authority's data demands can be satisfied through alternative means that minimize the privacy impact.

A company or individual whose digital devices or cloud storage accounts are seized pursuant to a search warrant must immediately assess whether the warrant satisfies the particularity requirement of the Fourth Amendment and whether the executing agents exceeded the scope authorized by the warrant, and data breach litigation counsel advising on a digital search warrant challenge must evaluate whether the warrant's description of the items to be seized is sufficiently specific to prevent a general exploratory search of the target's digital devices and whether any of the seized devices contain privileged materials that require the appointment of a taint team.

A company that discovers evidence of cybercrime involving its systems must evaluate whether voluntary self-disclosure to the relevant regulatory or law enforcement authority will produce a more favorable outcome than waiting for the government to discover the incident independently, and cybersecurity legal consulting counsel advising on the self-disclosure decision must evaluate whether the applicable regulatory framework provides for reduced penalties or deferred prosecution treatment in exchange for prompt voluntary disclosure and whether the scope of the cybercrime and digital fraud incident is sufficiently contained that a disclosure can be made accurately without creating a misleading partial picture.