Cyber Crime and Counter Malign Foreign Influence Defense

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.