Having spent a good amount of time learning more about the so-called "dark net," as well as botnets, associated viruses, and malware of innumerable descriptions and applications—-all in connection with a complex wire fraud case I am defending in federal court, I'm not just amazed at folks who are surprised by the overwhelming level of cyber fraud being perpetrated these days, but also at those who express surprise when they get caught engaging in it, themselves. This is particularly so in sex crimes cases involving the computer and internet, which is where a lot of my clients and cases originate. In those cases, it seems so many clients are letting their guards down, losing their inhibitions, and taking leave of common sense in trying to become who and what they are not, that there is almost a built in psychiatric/criminal responsibility defense for what they are doing. It is both fascinating and compelling for a longtime criminal defense attorney like me. The line between fantasy/fiction/role-playing and actual criminality can be close and fraught with danger; it is also the impetus for novel affirmative defenses I am currently developing/exploring with several experienced forensic psychiatric experts who agree with me that often the government (prosecutors) has a hard time, or doesn't take time, to understand or appreciate the difference. Still, for folks who might be role playing or pretending, or who know that others like them are online doing it too, not to recognize the person they maybe "sexting," chatting, or interacting with could be a cop, is something that never ceases to amaze me. I mean, if you can pretend to be someone entirely different than who you are, why on earth would you not take a moment to realize so can the police; but clients rarely do, which is why I guess they're clients.
But it's not only in the cyber sex crimes cases that I frequently defend, like child pornography, enticement, coercion, exploitation, and/or obscenity, where I see this. I also see it in the entire universe of cyber crimes I deal with; wire fraud, piracy, hacking; identity theft; and/or online harassment cases, too. In those, clients using pseudonyms, "handles," "anonymzing software," and/or "hide-my-address" programs invariably express shock when they, too, are caught and identified, as though it never occurred to them that cyber police not only have the same tools and skills they have, but often have better (and better funded) ones, and because it's a core investigative component, that investigators are leaps ahead of the average offender when it comes to recovery and reconstruction. All of which means, unless you are currently in Kazakhstan, or Uzbekistan, or in one those other Eastern European badlands, the chances are, if you are doing something criminal online, you will get caught. This is because, unlike trace evidence in traditional crimes where time, weather, storage, exposure and mishandling can erase critical proof, your online "fingerprints," "footprints," and "tool marks" will always exist in cyber space; it's simply a matter of how determined the authorities are to find you. (I.e., if this applies to you, take my business card and number. You're going to need them.)
It's because of all this that I am as impressed by Ross Ulbricht's technical sophistication in purportedly running a $213M online drug distribution enterprise for nearly two full years as I am by his almost child- like naiveté in apparently thinking he could actually get away with it; he didn't. Just ten days ago, Ulbricht, whom a federal jury in the Southern District of New York concluded was "digital [drug] kingpin" Dread Pirate Roberts, was found guilty on all seven of the counts of the narcotics-distribution related offenses he was charged with. Exhibiting how compelling forensic computer evidence can be once all the "digital dots" are connected by experts, the jury in the so called "Silk Road case" needed a mere 3½ hours to reach its verdict. The most serious charges on which they convicted Ulbricht were managing/maintaining a Continuing Criminal (narcotics) Enterprise (CCE) and Distributing narcotics via the internet. Both allow for possible life sentences; the CCE conviction, alone, also requires a minimum 20 years in federal prison. Ulbricht is 30.
According to federal prosecutors in the Southern District of New York (where I am also licensed to practice law), the "Silk Road" was an online black market where heroin, cocaine, LSD, other controlled substances, and "illicit goods" were sold. The principal currency for the underlying transactions was Bit Coin, and prosecutors alleged (and the jury agreed) Ulbricht was paid millions of dollars in commissions for illegal drug sales. As part of their case in chief, the government also introduced evidence that Ulbricht paid hundreds of thousands of dollars to commission murders of rivals/threats to his business. There was no evidence that anyone was actually killed or harmed as a result, but in federal criminal law attempts are not distinguished from completed crimes for sentencing purposes and they are usually treated as "acts in furtherance of...", anyways.
As with so many computer crimes, carelessness, arrogance, or just plain old fashioned hubris, appears to be what was behind Ulbricht's ultimate downfall. First, he was arrested in a public library by FBI agents while actually logged on to his laptop using the target handle "Dread Pirate Roberts." Second, examiners recovered from his seized laptop journal entries connecting him to the website, including one in which, according to evidence introduced at his trial (as reported by the NY Times), "he described how he had created "Silk Road." Third, trial testimony established Ulbricht admitted to a college classmate whom he sought programming help from that he "created and ran Silk Road."
After the verdict, Preet Bharara, the United States Attorney for the Southern District of NY (an office much better known for the number of insider trading/securities fraud cases prosecuted than for the volume of drug crimes indicted) said, "the supposed anonymity of the dark web is not a protective shield from arrest and prosecution." This is not just post trial rhetoric, but a caution that should be taken to heart. It is also a good segue to three pieces of free legal advice. My first piece of advice is to understand no cyber crime is untraceable; the tool marks and evidence are already there and it is simply a matter of time, effort, money, and patience before investigators will find them. My second piece of advice is to know that use of a computer to facilitate federal crimes is always an aggravating factor that will lead to substantial sentence enhancements and increases in federal court. My third piece of free legal advice is to call me immediately if you are charged with, or under investigation for, any state or federal computer based crimes. The consultation is free!
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country. He routinely represents, and has unparalleled experience, and an impressive record, in defending all types of cyber crimes in state and federal courts including, wire fraud; insider trading; aggravated ID theft; distributing/disseminating child pornography; possessing child pornography; child enticement/coercion/exploitation; harassment and piracy offenses.