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Attorney General Eric Holder appeared before the Senate Judiciary committee yesterday regarding prosecutions of cyber-attack hackers. Although almost drowned out by the arguments on the Administration’s use of drones, there was significant discussions regarding cyber prosecutions. In the wake of a report by cyber-security firm Mandiant about cyber-attacks from China, the Senators criticized the Attorney General for failing to prosecute more cyber criminals. Holder acknowledged that cyber attacks which result in accessing trade secrets have a devastating impact on the U.S. economy. but he went on to point out the cyber crime cases are difficult and expensive to put together.

During the questioning, Senator Sheldon Whitehouse (D, R.I.) pointed out that cyber crime cases are very expensive and complicated to prosecute and with budget concerns, the department should focus its resources. Senator Chris Coons (D, DE) suggested a private cause of action might be a more effective remedy, which Holder acknowledged as an option worth discussing. Private causes of action have been created in the past for what originated as criminal statutes related to cyber crimes such as the Computer Fraud and Abuse Act and the Stored Communications Act. Accordingly, it is not a stretch for such a cause of action to be created for cyber crimes such as theft of trade secrets under the Electronic Espionage Act for example. But, that’s the business of the legislative branch, not the DOJ.

Holder noted on the record that intellectual property theft is a problem that is getting larger. At the end of the day, despite how difficult and expensive cyber crime prosecutions may be, it’s the job of the Department of Justice to enforce our laws. It sends a terrible message to those who engage in such criminal activities that our Justice Department may lack the commitment to prosecute those cases to the full extent of the law. Regardless of whether the underlying crimes are mail fraud, bank fraud, Ponzi schemes, counterfeiting, or in this case, cyber crimes the devastating effects on the victims and ultimately our economy dictate that these crimes be dealt with severely.

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