In most cases, a computer-related crime that is committed anywhere in the U.S. can usually be prosecuted as a federal offense. Of course, each state maintains its own laws regarding computer-based offenses, but such crimes typically involve the internet, which places them under the jurisdiction of federal authorities and the United States federal justice system. For example, those accused of using computers to facilitate drug or weapons trafficking or the exchange of child pornography will usually find themselves facing charges in federal court. The same is true for “hackers” who gain unauthorized access to computer networks or systems via the internet. But what about voting system hacking?

This knowledge—combined with the rampant allegations and rumors of voting-related fraud during the current election campaign—you may be surprised to discover that federal authorities do not currently have a concise process available to prosecute any suspect who is alleged to have hacked a voting system. Late last month, the U.S. House of Representatives took a clear step forward in addressing this problem by unanimously passing a measure that will give the U.S. Justice Department a statutory basis from which to prosecute voter system hacking in federal court.

The Need for a Voting System Hacking Law

The Defending the Integrity of Voting Systems Act originated in the Senate last year following a report issued by the Cyber Digital Task Force—a commissioned extension of the Justice Department. In the report, the Task Force recognized that the Computer Fraud and Abuse Act (CFAA) was and continues to be the primary federal statute under which hacking crimes are prosecuted. However, the CFAA, as it is currently written, does not expressly identify voting machines as protected computers, which means hacking into a voting machine is not expressly identified as a federal crime under the CFAA.

Voting machines are not always part of an internet-connected network, which is one of the primary factors in determining if a computer is considered protected by the CFAA. As it stands right now, tampering with a voting system or machine can be prosecuted using other federal laws, but hacking such a machine falls into a very gray area.

Support from Both Parties

Three senators co-sponsored the Defending the Integrity of Voting Systems Act when it was introduced last year, including Democrats Richard Blumenthal (CT) and Sheldon Whitehouse (RI) and Republican Lindsey Graham (SC). The measure would add language to the CFAA that clearly extends protection to voting machines used in federal elections as covered computers. The addition would make hacking such a voting machine or system a federal crime punishable by up to ten years in prison for a first offense.

While political cooperation regarding election matters seems to be at an all-time low, lawmakers recognized the necessity of protecting voting systems. The Senate passed the measure unanimously in 2019, and in September of this year, the House did the same. The Justice Department has expressed its endorsement of the Act, which is now awaiting the signature of President Trump. Experts suggest that Mr. Trump will almost certainly sign the measure, but the White House has not provided any information regarding if or when he might do so.

Contact a Federal Hacking Defense Attorney in Illinois

At the Law Offices of Hal M. Garfinkel, we understand how serious federal computer-related charges can be. If you are facing such accusations, it is critical to work closely with an experienced Chicago federal computer crimes defense lawyer. Call 312-270-0999 for a free, confidential consultation with a member of our team today. We will help you understand your options and assist you in building the best possible defense for your unique situation.


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