Cyber Crime and Counter Malign Foreign Influence Defense
Cyber attacks designed to influence and interfere with American democracy are a new reality for U.S. law enforcement authorities. The U.S. Department of Justice (DOJ), Federal Bureau of Investigation (FBI), and other federal agencies have been enhancing their capabilities for combating malign foreign influence, and individuals and organizations accused of attempting to corrupt the democratic process are at risk for swift and aggressive prosecution.
From the birth of our nation, its leaders have been concerned with protecting the rights of American citizens to decide who governs. Democracy is the founding principle of the United States, and our nation’s sovereignty takes precedence over all else. America is strong because is governed by the will of its people, and because its leaders understand the fundamental, immeasurable value of giving its people a voice that matters.
But, American’s democracy is under attack. In the words of the U.S. Department of Justice (DOJ):
“Hostile foreign actors have long sought to influence, and to subvert, our Nation’s democratic institutions. Modern technology—including the Internet and social media platforms—has both empowered and emboldened foreign governments and their agents in their attempts to affect U.S. attitudes, behaviors, and decisions in new and troubling ways.”
Combatting this risk of malign foreign influence is the top priority of the DOJ, Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), National Security Agency (NSA), and other federal authorities. These authorities are utilizing highly-sophisticated technological resources to identify and thwart attempts to undermine America’s democratic institutions. For foreign nationals and foreign entities that fall into DOJ, FBI, CIA, or NSA crosshairs, the response can be immediate and overwhelming, and the risks can be almost incalculable.
Federal Defense Attorneys for Matters Involving Allegations of Malign Foreign Influence
Our attorneys provide federal defense representation for individuals and organizations accused of exerting, or attempting or conspiring to exert, malign foreign influence over U.S. elections and other democratic processes. As succinctly summarized by the DOJ, “[f]oreign influence operations can pose a threat to national security—and they can violate federal criminal law.” At Oberheiden P.C., we rely on our attorneys and former federal agents’ centuries of combined experience to ensure that all individuals and organizations accused of attempting to infiltrate U.S. democracy are able to defend themselves and (if necessary) receive a fair trial.
The U.S. government targets all types of covert and overt activities that are perceived as attempting to unduly influence U.S. elections and other democratic processes. These activities constitute crimes under various federal laws, and federal prosecutors can use various other criminal laws of general applicability to pursue multiple additional charges as well. For example, the following are all activities that the DOJ has identified as forms of malign foreign influence that will be prosecuted to the fullest extent of federal law:
- Spreading Disinformation and Sewing Division Through False News Stories and Headlines – “Fabricated news stories and sensational headlines like those sometimes found on social media platforms are just the latest iteration of a practice foreign adversaries have long employed in an effort to discredit and undermine individuals and organizations in the United States.”
- Efforts that Target One or More Political Bases – “Malign foreign influence operations need not favor one political figure, party, or point of view. Foreign adversaries can take advantage of social media platforms to send contrary (and sometimes false) messages simultaneously to different groups of users based on those users’ political and demographic characteristics, with the goal of heightening tensions between different groups in our society.”
- Efforts that Target Specific Political Campaigns, Candidates, and Officials – “[A]dversaries could conduct cyber or other operations against U.S. political organizations and campaigns to steal confidential information and use that information, or alterations thereof, to discredit or embarrass candidates, undermine political organizations, or impugn the integrity of public officials.”
- Efforts to Directly Corrupt U.S. Elections – “Elections are a particularly attractive target for foreign influence campaigns because they provide an opportunity to undermine confidence in a core element of our democracy: the process by which we elect our leaders. . . . [This includes] messaging strategy that blends covert intelligence operations—such as cyber activity—with overt efforts by [government] agencies, state-funded media, third-party intermediaries, and paid social media users or ‘trolls.’”
- Targeting U.S. Election Infrastructure – “[A]dversaries could employ cyber-enabled or other means to target election-associated infrastructure, such as voter registration databases and voting machines, or to target the power grid or other critical infrastructure in order to impair an election. Operations aimed at removing otherwise eligible voters from the rolls or attempting to manipulate the results of an election (or even simply spreading disinformation suggesting that such manipulation has occurred) could undermine the integrity and legitimacy of our free and fair elections, as well as public confidence in election results.”
Defending Against Allegations of Malign Foreign Influence in U.S. Democratic Processes
While federal agencies use all resources at their disposal to combat malign foreign influence, the DOJ has outlined five specific tactics that it intends to use to target individuals and organizations suspected of using misinformation and cyber attacks to corrupt U.S. democratic processes. At Oberheiden P.C., our Cybercrime and National Security Team includes several former senior prosecutors with the DOJ as well as multiple former high-ranking agents with the DOJ’s Office of Inspector General, the FBI, and other agencies, and we are able to utilize these professionals’ past experience to build targeted defense strategies to protect our clients. According to the DOJ, it intends to combat malign foreign influence through:
1. Investigation and Prosecution of Criminal Charges
“First, the [DOJ’s] investigations may reveal conduct that warrants criminal charges. Criminal charges not only are a tool the Department uses to pursue justice, but also can help deter similar conduct in the future. We will work with our international partners to obtain custody of foreign defendants whenever possible.” Indeed, foreign corruption of U.S. elections can support numerous criminal charges under various sections of the U.S. Code, and individuals targeted for prosecution will often be at risk for millions of dollars in fines and decades of federal imprisonment. Through extradition treaties, the DOJ can prosecute U.S. citizens and foreign nationals who currently reside in foreign countries.
2. Imposition of Financial Sanctions on Foreign Nations that Facilitate or Support Malign Foreign Influence
“Second, in some cases, the [DOJ’s] investigations can support other U.S. government agencies’ actions, such as financial sanctions or diplomatic and intelligence efforts.” Through coordination with the Office of Foreign Assets Control (OFAC), the White House, and other federal authorities, the DOJ can seek the imposition of embargoes, tariffs, and other financial sanctions on foreign nations that harbor criminals or otherwise facilitate or support malign foreign influence in U.S. elections.
3. Coordination with Other Federal, State, and Local Law Enforcement Agencies
“Third, the Department’s investigations produce information about threats and vulnerabilities that we can share with State and local election officials [and] political organizations.” The DOJ works in close coordination with the FBI and other federal agencies on many different types of federal law enforcement investigations, and it also works with and supports state and local authorities when necessary. With our firm’s nationwide reach, we are able to effectively represent clients that are being targeted by all federal, state, and local law enforcement authorities.
4. Leveraging of “Strategic Relationships” with Social Media Providers
“Fourth, the Department maintains strategic relationships with social media providers that reflect the private sector’s critical role in addressing this threat. . . . The FBI can assist the providers’ voluntary efforts to identify foreign influence activity and to enforce terms of service that prohibit the use of their platforms for such activities.” Our attorneys and former federal agents have significant experience on both sides of federal investigations involving the cooperation of private entities. We can assist in ensuring that all applicable statutory and constitutional protections are strictly observed, and we can make sure that information obtained from private sources is not unduly used to support criminal charges or economic sanctions.
5. Alerting Victims To and Publicly Identifying Corrupt Influences
“Finally . . . [t]he [DOJ] may alert victims or targets about foreign influence operations consistent with its longstanding policies and practices. . . . [I]n certain circumstances, public disclosure and attribution can also be an important means of countering the threat and rendering those operations less effective.” In many situations, maintaining the confidentiality of a federal investigation can be crucial to mitigating its consequences. We have experience working with federal authorities to negotiate maintaining the confidentiality of our clients’ cases; and, when providing defense representation during federal investigations, we focus on achieving favorable outcomes without charges being filed.
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Speak with a Cyber Crime Federal Defense Lawyer at Oberheiden P.C. in Confidence
For individuals facing accusations of perpetrating or facilitating malign influence in elections and other democratic processes, it is imperative to engage federal defense counsel promptly. The attorneys and former agents on our Cybercrime and National Security Team are available to speak with prospective clients 24/7. To speak with a member of our team in confidence, call 214-692-2171 or contact us online now.