White-Collar Criminal Defense
- Our attorneys include former government trial attorneys, former law clerks to federal judges, law professors, and dual-credentialed CPAs with deep experience in white-collar defense. Nearly one-third of our attorneys serve as law professors at tier-one law schools.
- Our white-collar attorneys have been recognized nationally and internationally, including being named to U.S. News and World Report’s Best Lawyers in America list, Super Lawyers, and recognized by Chambers & Partners as among the leading attorneys in the United States, including for fraud representations.
- Freeman’s attorneys have extensive white-collar litigation experience in complex, sophisticated federal matters.
Freeman is a go-to white-collar boutique for cybercrime investigations, prosecutions, and related litigation. We are experienced in sensitive computer crime defense and our white-collar defense attorneys offer big-firm talent in a collaborative environment, think-tank intellect, and exacting analytical precision. Well-versed in high-stakes litigation, our attorneys are trial-ready and battle-tested; we’re ready when you are.
The right move at the right time can mean the difference between the right outcome and the wrong one. The initial response to a white-collar legal crisis is critical. It requires an organized, strategic response, often on multiple fronts, framing the discourse and issues. Many of our most successful representations never see the light of day. But when the trial is necessary, we defend our clients zealously and strategically.
When it comes to cybercrime defense, Freeman is the firm that clients seek out when the stakes are high, and the issues are complex.
The federal laws relating to computer crimes—so-called “computer crimes,” “cybercrimes,” and “network crimes”—have evolved and expanded over the years. Computer crimes include, among other things, computer intrusions, denial of services attacks, viruses, and traditional hacking violations. Computer crimes involve an interplay of several statutory regimes, which include:
The Computer Fraud and Abuse Act (CFAA)
The Computer Fraud and Abuse Act (CFAA) is a civil and criminal cybercrime law prohibiting a variety of computer-related conduct. The Computer Fraud and Abuse Act criminalizes conduct that victimizes computer systems. This cyber-security law protects federal computers, bank computers, and computers from trespassing, threats, damage, espionage, and from being corruptly used as instruments of fraud. The CFAA is not a comprehensive provision; rather, it fills gaps left in other federal criminal laws.
The CFAA is much broader than prohibiting computer hacking, prohibiting seven categories of conduct, including:
- Obtaining national security information through unauthorized computer access and sharing or retaining it;
- Obtaining certain types of information through unauthorized computer access;
- Trespassing in a government computer;
- Engaging in computer-based frauds through unauthorized computer access;
- Knowingly causing damage to certain computers by the transmission of a program, information, code, or command;
- Trafficking in passwords or other means of unauthorized access to a computer;
- Making extortionate threats to harm a computer or based on information obtained through unauthorized access to a computer
The Wiretap Act
The Wiretap Act, also known as “Title III,” any person,” prohibits making an illegal interception or disclosing or using illegally intercepted material. The Act concerns interception of electronic and wire communications, which include “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection.” An oral communication is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under the circumstances justifying such expectation”; this constitutes any oral conversation in person where there is the expectation no third party is listening.
The CAN-SPAM Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (2003) prohibits certain acts relating to the sending of large amounts of unsolicited commercial email (i.e., “spam”), including the inclusion of deceptive or misleading information and failures to honor opt-out requests. The act preempts state laws regulating the transmission of commercial email, although the act specifically provides that it does not preempt state laws prohibiting fraud or deception.
Economic Espionage Act (EEA)
The Economic Espionage Act (EEA), codified at 18 U.S.C. § 1831-1839, criminalizes the theft or trafficking in trade secrets for foreign governments, instrumentalities, or agents. The EEA was amended in 2016 by the Defend Trade Secrets Act (DTSA), which created a federal private cause of action for trade secret misappropriation and underscored Congress’s desire to align closely with the Uniform Trade Secrets Act.
The Economic Espionage Act prohibits the theft of trade secrets for the benefit of a foreign government, instrumentality, or agent, as well as the commercial theft of trade secrets to benefit someone other than the owner. The penalties are increased for defendants who are companies. By statute, the term “trade secret” includes all types of information concerning which an owner has taken reasonable measures to keep secret, and that has independent economic value.
Unlawful Access to Stored Communications
The Stored Communications Act addresses access to stored communications while not being transmitted—typically, e-mails that are not in transit. The Act criminalizes intentionally accessing a facility in which electronic communication services are provided and obtaining unauthorized access to a wire or electronic communication while it is in electronic storage in such a system.
Aggravated Identity Theft
The Identity Theft Penalty Enhancement Act provides for the offense of aggravated identity theft, set out at 18 U.S.C. § 1028A. Section 1028A applies when a defendant “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” during and in relation to any felony violation of certain enumerated federal offenses, including 18 U.S.C. §§ 1028 (but not 1028(a)(7)), 1029, 1030, 1037, and 1343. In other words, section 1028A is often applicable in the context of computer crime.
Access Device Fraud.
“Access device” frauds are criminalized in 18 U.S.C. § 1029. Section 1029 prohibits the production, use, possession, or trafficking of unauthorized or counterfeit access devices. Common examples include prosecutions for “phishing,” where a defendant uses fraudulent emails to obtain bank account numbers and passwords, and “carding,” where a defendant purchases, sells or transfers stolen bank account, credit card, or debit card information. Penalties for violations of section 1029 range from a maximum of 10 or 15 years of imprisonment, depending on the subsection violated.
18 U.S.C. § 1362 prohibits the willful or malicious injury or destruction of “any of the works, property, or material of any radio, telegraph, telephone or cable, line, station, or system, or other means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States.” 18 U.S.C. § 1362. A violation of this section is a felony punishable by a fine, imprisonment for not more than ten years, or both. 18 U.S.C. § 1362.
The federal wire fraud statute prohibits a scheme to defraud that uses an interstate wire communication to further the scheme. Courts have recognized a variety of means of communication, including facsimile, telex, modem, and Internet transmissions, as satisfying the requirement of interstate wire communication. Violations of this section give rise to potential imprisonment for up to 20 years, as well as fines. If the violation affects a financial institution, however, the maximum penalty rises to a fine of up to $1,000,000 and imprisonment of up to 30 years.
Electronic Communications Privacy Act
The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are commonly referred together as the Electronic Communications Privacy Act (ECPA) of 1986. The ECPA updated the Federal Wiretap Act of 1968, which addressed interception of conversations using “hard” telephone lines but did not apply to interception of computer and other digital and electronic communications.
Experience Defending Against the Government
Our attorneys have experience navigating, and defending against, a range of government agencies, including the:
- Federal Bureau of Investigation (FBI)
- Department of Justice (DOJ), Computer Crime and Intellectual Property Section (CCIPS)
- National Cyber Investigative Joint Task Force (NCIJTF)
- The Secret Service
- Cyber Fraud Task Forces (CFTFs)
- State Agencies
Freeman’s white-collar attorneys also assist corporate and individual clients with responses to government inquiries, including Department of Justice investigations, federal agency investigations, and investigations carried out by state Attorneys General.
Cybercrime investigations and prosecutions can represent an existential threat. And a white-collar investigation can be a life-altering event. Whether the investigation results in an indictment, it can be expensive, protracted, and stressful. Our firm is accustomed to handling complex, sensitive matters; we were designed for bet-the-company proceedings.
Courtrooms are human institutions. And when parochial interests threaten the principles of justice, clients need articulate, forceful advocacy. Clients need advocates with courage and the fortitude to push through the most difficult challenges.
White-collar investigations into alleged computer crime violations test savvy and strategic thinking, necessitating tactical navigation of complex factors. We work collaboratively, developing a strategic plan of attack. Recognizing that indictments in many white-collar matters can be almost as devastating as convictions, we proactively investigate the facts, develop viable defenses, and engage the government to stop prosecutions short of an indictment.
White-collar matters often involve simultaneous and parallel criminal, regulatory and civil proceedings. Freeman can navigate the complexities and collateral consequences of multiple proceedings. And when it comes to the court of public opinion, we employ ethical and strategic tactics to manage publicity.
Our attorneys at Freeman employ a proactive approach to defend and strategically position our clients. Our attorneys often initiate interaction with federal and local prosecutors, regulatory agencies, congressional investigators, and the media. The stigma of criminal accusations can impact anyone, especially professionals. Where appropriate, we seek early and rapid intervention, counteracting the impact of an investigation before it becomes public.
Our attorneys exercise sound judgment and discretion. Ultimately, our credibility is our most important attribute. We build upon it through discerning judgment and considered analysis.
Our lawyers are connected as former government trial attorneys, former federal court law clerks, law professors at top-tier law schools, and leaders in positions of influence in public organizations. We use our firsthand knowledge of government agencies and their investigative protocols to navigate our clients through the morass, leveraging our government experience and contacts.
Experience that Counts
We have experience representing clients against a broad range of allegations and investigations and technologically savvy counsel at the forefront of cyber technologies.