Jurisdiction:
Area of Law:
Question:
Selected Answer:
Submitted by DakotaLegal on
All Comments
Submitted by DakotaLegal on
Your employer’s attitude will have an important bearing on the matter. The law, however, does not “represent” the victim. A prosecution acts on behalf of society. In your case, though, it’s not clear that you have been arrested, let alone charged. Usually, a prosecutor will decide pretty quickly (in less than a week) whether to prosecute. Unfortunately, Virginia is getting a reputation for pretty tough attitudes toward computer rimes. You can look at a list of possible Virginia state hacking crimes here… http://ellblog.com/wp-content/uploads/2012/04/Pinguelo-UVA%20JoLT%20Spring%202011.pdf (see page 68). And keep in mind, it’s just as likely you might be charged with something other than what the police described (“computer trespass” is a common prosecution tool in Virginia).
Having said all that, you appear to have more going for you, than against you, to avoid being prosecuted…
Two important facts are your current attitude and your apparent motive. You seem to have clearly satisfied your ex-employer that you weren’t trying to benefit financially. That’s become an important issue in pursuing hacking prosecutions. At the same time, you aren’t pretending to have been a White Hat, trying to show a security breach. This attitude not only impresses an ex-employer, who often wants to avoid extra publicity, but also can impress the police. Prosecutors who make the final decision will look at your settlement with the employer…and also weigh:
Five Factors In Prosecuting:
(a) any previous offenses alleged or charged against you; (b) the extent of the damage and your willingness to make restitution; (c) the amount of time the authorities had to invest in the case; (d) your perceived likelihood of repeating the offense (your age, demeanor, reputation, ex-employer’s statements); (e) the relative difficulty of proving the case in court if you should enter a “not guilty” plea.
The more these considerations work in your favor, the more likely you won’t be prosecuted.
One issue will be who the arresting authority was. Smaller cities often forego prosecutions. (http://www.lexisnexis.com/lawschool/study/understanding/pdf/WhiteCollarCh1.pdf @ p.6). We’ll cover the issue of who arrested you in a second. First, though…
If You Are Prosecuted…
You probably, at this point, have not gotten a lawyer yet. Because you were fired, you might be eligible for low-income legal aid. http://www.vlas.org/.This also raises a question, because up until now, I’ve been just assuming you were actually arrested and then charged. If you weren’t, then you may have rights to plead innocent, for several reasons unrelated to how you’ve been co-operating. Perhaps you weren’t read your rights or your own privacy rights were violated. You should get a lawyer regardless of whether they prosecute. One important factor may be the consequences of having an arrest on your record in what may be your chosen profession.
Police sometimes effectively withdraw an arrest by making an administrative decision. It can depend on whether and how they address white collar crime: if they have a white collar or business fraud investigations unit, it’s most likely your case has been sent to an assistant district attorney already for prosecution. They make the choice how to handle the case. If the DA still chooses not to prosecute, they might accomplish this in several ways. They may leave it as an open case. More likely, they will Nolle Prosse your case….meaning they make an administrative decision not to pursue it.
Other Concerns
No matter how your case may be discharged, you will have a record. Consider getting help to seal your record. Any later offense (true or not) will be looked at much more severely. There’s one last worry, but (from your question) it doesn’t seem likely.
Still, you need to know that not only does Virginia have laws against hacking, but federal laws (in the Computer Fraud and Access Act) could also have been triggered. To violate the CFAA, an individual must access a computer or information on a computer without permission. For example, there are ex-employee cases such as United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (en banc); LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134-35 (9th Cir. 2009). http://www.ca9.uscourts.gov/datastore/opinions/2009/09/15/07-17116.pdf.Any chance of federal prosecution is an entirely different set of possibilities when it comes to Nolle Prosse. If, for example, your ex-employer was a federal government contractor, she may be under an obligation to report your breach to a federal agency.
Your employer’s attitude will have an important bearing on the matter. The law, however, does not “represent” the victim. A prosecution acts on behalf of society. In your case, though, it’s not clear that you have been arrested, let alone charged. Usually, a prosecutor will decide pretty quickly (in less than a week) whether to prosecute. Unfortunately, Virginia is getting a reputation for pretty tough attitudes toward computer rimes. You can look at a list of possible Virginia state hacking crimes here… http://ellblog.com/wp-content/uploads/2012/04/Pinguelo-UVA%20JoLT%20Spring%202011.pdf (see page 68). And keep in mind, it’s just as likely you might be charged with something other than what the police described (“computer trespass” is a common prosecution tool in Virginia).
Having said all that, you appear to have more going for you, than against you, to avoid being prosecuted…
Two important facts are your current attitude and your apparent motive. You seem to have clearly satisfied your ex-employer that you weren’t trying to benefit financially. That’s become an important issue in pursuing hacking prosecutions. At the same time, you aren’t pretending to have been a White Hat, trying to show a security breach. This attitude not only impresses an ex-employer, who often wants to avoid extra publicity, but also can impress the police. Prosecutors who make the final decision will look at your settlement with the employer…and also weigh:
Five Factors In Prosecuting:
(a) any previous offenses alleged or charged against you; (b) the extent of the damage and your willingness to make restitution; (c) the amount of time the authorities had to invest in the case; (d) your perceived likelihood of repeating the offense (your age, demeanor, reputation, ex-employer’s statements); (e) the relative difficulty of proving the case in court if you should enter a “not guilty” plea.
The more these considerations work in your favor, the more likely you won’t be prosecuted.
One issue will be who the arresting authority was. Smaller cities often forego prosecutions. (http://www.lexisnexis.com/lawschool/study/understanding/pdf/WhiteCollarCh1.pdf @ p.6). We’ll cover the issue of who arrested you in a second. First, though…
If You Are Prosecuted…
You probably, at this point, have not gotten a lawyer yet. Because you were fired, you might be eligible for low-income legal aid. http://www.vlas.org/.This also raises a question, because up until now, I’ve been just assuming you were actually arrested and then charged. If you weren’t, then you may have rights to plead innocent, for several reasons unrelated to how you’ve been co-operating. Perhaps you weren’t read your rights or your own privacy rights were violated. You should get a lawyer regardless of whether they prosecute. One important factor may be the consequences of having an arrest on your record in what may be your chosen profession.
Police sometimes effectively withdraw an arrest by making an administrative decision. It can depend on whether and how they address white collar crime: if they have a white collar or business fraud investigations unit, it’s most likely your case has been sent to an assistant district attorney already for prosecution. They make the choice how to handle the case. If the DA still chooses not to prosecute, they might accomplish this in several ways. They may leave it as an open case. More likely, they will Nolle Prosse your case….meaning they make an administrative decision not to pursue it.
Other Concerns
No matter how your case may be discharged, you will have a record. Consider getting help to seal your record. Any later offense (true or not) will be looked at much more severely. There’s one last worry, but (from your question) it doesn’t seem likely.
Still, you need to know that not only does Virginia have laws against hacking, but federal laws (in the Computer Fraud and Access Act) could also have been triggered. To violate the CFAA, an individual must access a computer or information on a computer without permission. For example, there are ex-employee cases such as United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) (en banc); LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134-35 (9th Cir. 2009). http://www.ca9.uscourts.gov/datastore/opinions/2009/09/15/07-17116.pdf.Any chance of federal prosecution is an entirely different set of possibilities when it comes to Nolle Prosse. If, for example, your ex-employer was a federal government contractor, she may be under an obligation to report your breach to a federal agency.