|
 |
The Legal Line
By Ed Maldonado |
Dear Legal Line:
This is just a friendly professional inquiry. I am also an attorney,
actually a solo practitioner, and I represent mostly small upstart
VoIP service providers. I have several incidents where my clients
were hacked at their gateways and were left with the bills for tens
of thousands of dollars. We have identified the hacking company
through our own investigation and are now advancing on claims on
the basis of civil theft, intentional interference with a business
relationship and unjust enrichment. Are there any other claims that
you are aware of that might be useful in such instances? I would
like to pack the claims as completely as possible. Your input is
welcomed.
Fellow Counsel
Dear Fellow Counsel:
Thank you for your inquiry and I hope this helps. I am not sure
if your claims are federal or state, however, at the federal level
there is a statute with remedy in both civil and criminal courts
depending on how you wish to proceed. This is under United States
Code Tile 17 (the precise cite is 17 USC 1030 (a) (4)) and it covers
unauthorized access into a private or public parties protected network
for fraudulent purposes or for access causing damage to the owner
of the network. Since VoIP networks function like most other private
protected networks, there may be room for applying the statute in
federal cases. I suggest you research it for your jurisdiction before
advancing it, as there is a substantial amount of case law that
has developed over the past three years in several jurisdictions.
Most of this supports the claims of victims but there are some anomalous
rulings in a few jurisdictions that place some limits.
The long and short of the federal statute itself is simple. Should
an authorized party access a protected computer network causing
damage to the owner, the owner has recourse under civil or criminal
causes. Since the focus of your claims at this point seem to be
damages, you may wish to explore the civil side. The requisites
are: 1) Un-authorized access by a party to a protected network of
the victim; 2) Identification with certainty of the unauthorized
accessing party; 3) Damages being caused in excess of $5,000.00
USD because of the unauthorized access per incident or cumulative.
The scope of the statute also includes users going beyond their
authorized access. For example, a tech reprogramming a limited access
password to gain full access to a network and thereafter causing
damages. The civil cause portion of the statute allows you to bring
action on the unauthorized accessing party for damages in federal
district court where the hacker resides. It can eliminate some of
the jurisdiction chasing that can occur when the hacker in an out-of-state
offender. Causation and damages are the real key to success of these
types of claims. So if you have the proof, it will make a strong
claim to use to seek recovery.
The criminal side is based upon the same elements with the added
element of criminal or fraudulent intent. The Department of Treasury
is generally responsible for investigating such incidents and it
largely falls upon the Secret Service. Usually this involves reporting
the incident to local law enforcement and being referred up the
chain of law enforcement jurisdiction. I, however, believe that
an inquiry to the local Secret Service branch or FBI would not hurt
in order to get the ball rolling in an investigation. Thank you
for thinking of Legal Line.
Good Luck and Success in the Industry.
Do you have questions for Legal Line?
Send them to legalline@prepaid-press.com.
 |
|
| |
|
|
