More on Sentencing for Online Crimes From a Miami Cyber Crime Criminal Defense Lawyer

April 27, 2009 by David S. Seltzer

Last week, I mentioned a cyber crime proposal that was considered and (luckily) rejected by the U.S. Sentencing Commission. As you may recall, that proposal would have branded anyone who used a proxy server in an online crime as part of a “sophisticated” criminal enterprise. Because proxy servers are also in widespread use as security and “net nanny” applications, this caused an outcry that may ultimately have been responsible for the Commission’s decision to drop the proposal.

Those issues were on my mind when I read in the Washington Post that experts say organized crime is responsible for most computer security breaches. A lot of people have an image of hackers as loners who break into systems just to prove that they can, or for the fun of causing havoc. That may have been true ten years ago, but these days, cyber crime is a business. Often but not always based in Eastern Europe, these criminal cartels find security holes, then exploit them to steal financial information and identities. Once they have a credit or debit card number, they can buy things online or make false credit cards and use ATMs to extract large amounts of cash.

Of course, I support law enforcement efforts to track down online thieves and bring them to justice. But as a South Florida cyber crime criminal defense attorney, I can’t help wondering whether lawmakers might overreact to the fact that organized crime is now the leading source of hackers. As with the Sentencing Commission proposal, we may see more proposals to harshly punish cyber crime, piling on sentence enhancements extra penalties like asset forfeiture and asset freezes -- all predicated on the assumption that prosecutors are dealing with a sophisticated criminal enterprise. When the accused is a lone hacker or a teenager whose prank went wrong, those laws could be inappropriately harsh.

Unfortunately, this sort of unintended consequence is a common feature of laws on other hot-button issues, including drug crimes and child pornography charges. Improvements have been made in the last few decades, but drug laws in particular are notorious for being overly harsh on offenders whose only crime is simple possession. And as a Fort Lauderdale cyber crime criminal defense lawyer, I am well-versed in the overreaching and civil rights questions posed when child pornography laws are applied too broadly, as with teenagers accused of sexting.

Piling on harsh sentences and civil penalties may be appealing during an election, but even when the full cost -- in lives and money -- becomes obvious, it can be hard for politicians to back down on “tough on crime” positions. That’s why, as a Miami criminal defense attorney, I support careful consideration and flexibility in any change to sentencing guidelines, on the federal level or here in Florida.