Everyone be careful! Don’t let the boredom of home-sheltering entice you to commit a fatal mistake. Don’t use your computing device (computer, tablets, phone etc.) to engage in criminal activity. Don’t access your spouse’s phone or email without permission, don’t let frustration or anger cause you to send harassing or threatening messages to others, don’t think online sports betting is legal, and most certainly, let the draconian penalties of incarceration for accessing child pornography sites or illegally infringing copyrighted materials be strident warnings to stay clear.
We are speaking about Internet crimes today with renowned federal criminal defense attorney Dr. Nick Oberheiden. Attorney Oberheiden represents clients who are facing investigations for alleged Internet crimes conducted by the Federal Bureau of Investigation (FBI), the U.S. Justice Department (DOJ), the U.S. Department of Homeland Security (DHS) and other federal agencies in cases across the United States.
Q. Dr. Oberheiden, just to start easy, what exactly are Internet crimes?
A. The concept of online crimes (or Internet crimes) has changed over time. Originally, Internet offenses were considered those that could only be committed with the help of a computer such as hacking someone else’s computer system. Today, the general definition of online crimes has broadened to include any offense that was committed with the help of a computer irrespective of whether a computing device was essential or not. Drug trafficking and prostitution are two such examples. Technically, in order to sell drugs or to agree to illegal prostitution, you don’t necessarily need a computer. People have dealt with drugs and engaged in prostitution forever face-to-face on the street. However, nowadays an increasing number of these types of offenses and transaction also include the utilization of cell phones and computing devices when it comes to organizing deals and selecting people for criminal conspiracies, which can add more severe penalties at sentencing. When computing devices are a platform to commit a crime, you can consider the underlying offense an Internet crime.
Q. So, under this definition, blackmailing and extortion or electronic harassment would also count as Internet crimes?
A. Yes, that’s correct. Anytime someone uses a computer to do something illegally, that’s considered on online offense. To be clear, to use these verbal attack offenses, we all enjoy the freedom of speech under the First Amendment; however, the First Amendment does not protect any and all types of speech. Hate speech, intentional harassment, and using speech for extortion or blackmailing do not enjoy constitutional protection and can be prosecuted as felonies. So, for example, if you write an email or post something on the Internet that has the potential to be interpreted as a threat towards someone else, announce or insinuate violence, request money or anything else of value if one of your conditions is not met, or you call a person names— your behavior may fall quickly within the scope of unlawful conduct. So, when emotions are broiling, don’t use the Internet to express your anger and don’t attack the dignity or safety of another person in any electronic (or non-electronic) format.
Q. Is there a heightened risk of committing Internet offenses during this Covid-19 pandemic when we are sheltered at home?
A. I think so. When in-person interactions vanish, online offenses will rise. Keep in mind that many Internet crimes occur in the context of social tensions like divorces and family unrest. Spouses sometimes think that accessing their husband’s or wife’s computer or phone to take a quick peak if they can find evidence of an affair or hidden financial details is legitimate detective work. It is not! The fact that you are married makes no difference because being married does not include an implicit or explicit permission to invade your partner’s privacy. Similarly, some people may feel tempted to turn a blind eye to legal boundaries because they think that Internet crimes are “invisible” and thus not detectable. Almost every convicted child pornography offender started with that mindset. The truth is, the FBI has specialized task forces that can trace pretty much any of your visits to any website no matter what codename you use and no matter where you are. Just recently, to give you an example, I represented a client a huge international bitcoin fraud case spanning virtually every state within the United States as well as offshore islands. Admittedly, it took law enforcement months to link all the pieces and actors, but, in the end, the case resulted in a dozen of arrests and a plethora of criminal charges. Don’t put yourself into such a position. Don’t be naïve. I always tell clients: whether online or offline, assume that an FBI agent and your parents are watching what you are up to—so, act accordingly.
Q. In addition, what are some of the most common Internet crimes you see the FBI and the Department of Justice are prosecuting?
A. Chief focus of federal authorities are two types of Internet crimes: crimes committed for commercial gain or to cause corporate harm, and, in a category of its own, child pornography. To give you an example in the first category. I recently represented an individual who out of frustration of being fired accessed his former employer’s data system and literally erased the entire company network files—from his living room. Federal prosecutors don’t like when someone use access information or technology skills to cause harm. Whether it is hacking, phishing, spoofing or wagering on sports events over the Internet, I know from countless criminal defense cases that the Justice Department is very determined to take you down especially when there are real victims like in the case of defrauding and obtaining money through false or fraudulent pretenses. If you use the Internet to defraud seniors or create some form of a crime scheme, the FBI might very well knock at your door in the near future. This is particularly true when it comes to protecting minors. Federal prosecutors and federal agents are absolutely relentless when it comes to child pornography and prostitution involving minors. In fact, child pornography cases represent approximately twenty percent of all federal prosecutions. If you stand convicted for inducing, let alone, coercing a juvenile to engage in sexual conduct, don’t expect mercy.
Q. What are the penalties for Internet crimes?
A. Unlike some other countries, U.S. penal codes do not recognize “one” online crime. The penalties depend on the alleged offense someone commits. So, for example, if you access your wife’s cell phone without her or against her permission, you could be charged as a felon under 18 U.S.C. 1030. The exact outcome would depend on many factors such as the frequency, how you would use the accessed information, your criminal background and much more. Even if you escape imprisonment, you should wonder yourself if it is worth risking being a “felon” for acting stupidly in this one hot moment. Contrast this to, for instance, child pornography. The most lenient outcome in child pornography cases, that is any form of child sexual exploitation, you can expect is five years in federal prison with sentencing outcomes routinely reaching twenty years and more of incarceration.
Q. Despite these extreme penalties, why do Internet offenses continue to rise?
A. I think it is the idea that because you act in seemingly protected anonymity, you are not in the public but in a private area without any witnesses, no one can find or identify you. Of course, that’s only partially true. It is correct that Internet offenses typically don’t have any witnesses especially when compared to, let’s say, a bank robbery or other offenses that are predicated on human visibility. However, every time you use the Internet whether you are searching for something or whether you are visiting a website, you leave traces. Specialized detectives and computer crime experts from the FBI absolutely have the ability to identify you—perhaps not always right away, but if you are in the United States and the FBI is pursuing your case, chances are high that you will get caught eventually.
Even though each of the 50 U.S. states have some version of online crimes in their penal codes, almost all prosecutions involving Internet crimes and computer offenses are federal in nature. That means the Federal Bureau of Investigation (FBI) and the U.S. Department of Justice are leading the prosecutions, often in connection with the investigators from the U.S. Department of Homeland Security and other agencies. In general, penalties for federal felony violations are not just more severe, but, also, if you are convicted, you don’t have the option of parole. In other words, if a federal judge orders you to 10 years in federal prison, you can’t expect to be released after half or two-third of the time; parole does not exist under federal law. Typically, in the federal justice system, ten years means serving ten years.