Swatting Federal Prosecution.

First, it is important to clarify that swatting is a conduct label rather than its own standalone offense under federal law. This is why, when someone does something that the public or news media calls “swatting,” prosecutors must match the specific conduct to the elements of a particular federal statute.

In swatting cases, federal prosecutors may choose from several potential statutes to charge. Cases may be filed under 18 U.S.C. § 1038. 18 U.S.C. § 1038 is focused on “False Information and Hoaxes.” This statute covers a variety of scenarios, but it is particularly relevant in swatting cases because it specifically addresses information that triggers emergency responses. Specifically: - Section 1038(a)(1) prohibits engaging in conduct with the intent to convey false or misleading information, under circumstances where the information may reasonably be believed and indicates an activity that would constitute a violation of one of the offenses or statutes enumerated in the subsection. A violation of § 1038(a)(1) requires conduct intended to convey false or misleading information, under circumstances in which the information may reasonably be believed, indicating an activity that would constitute a violation of one of the offenses or statutes enumerated in § 1038(a)(1).

• Section 1038(b) creates civil liability for expenses incurred in an emergency or investigative response to conduct involving false or misleading information that may reasonably be believed. This means that for the government to prove a violation, they need to show that the information provided was not only false, but that it was credible enough to warrant a response by federal agencies or other emergency teams. When prosecutors use 18 U.S.C. § 1038, they will look to match a person’s specific actions to the language of the statute, seeking to prove the statutory elements, including the intent to convey false or misleading information under circumstances where it may reasonably be believed and indicates qualifying activity. The statute requires an intent to convey false or misleading information under circumstances where the information may reasonably be believed and indicates an activity that would constitute a violation of one of the offenses or statutes listed in § 1038(a)(1).

Which separate federal charges can accompany a false swatting report?

Depending on the specific circumstances at hand, federal prosecutors may pursue a number of other charges that fall outside the scope of 18 U.S.C. § 1038. These charges could include: - 18 U.S.C. § 371 Conspiracy. This statute is often seen in federal swatting cases, and it allows for the prosecution of any individual(s) who formed an “agreement to commit” another federal offense. While it is possible to be charged with a conspiracy under Section 371 without actually committing a criminal act yourself, prosecutors must generally be able to show that at least one overt act was committed by someone who participated in the conspiracy in order to prove it. Section 371 also typically carries a maximum sentence of five years of imprisonment.

• 18 U.S.C. § 2261A Cyberstalking. This statute can apply to cases involving the interstate use of electronic devices to harass, threaten, or intend to harass, threaten, or intimidate the person who is the target of the swatting call (or others as specified under the statute). When swatting conduct falls under the qualifying criteria for cyberstalking, prosecutors may include Section 2261A in their case as well.
• 18 U.S.C. § 875 Transmission of a Threat. In some cases involving communications in interstate commerce, the target individual or another victim may be subjected to a threat in addition to being subjected to a false police report. When swatting conduct involves the electronic transmission of threats, prosecutors can include Section 875 in their charges.
• Wire Fraud, Computer Fraud and Abuse. Depending on what happened before, during, and after the swatting report was made, federal prosecutors may also be able to bring charges for crimes such as wire fraud or computer-related offenses.

How can investigators prove that a defendant made the swatting call?

To link a device or individual to a swatting attempt, federal investigators typically seek to gather digital evidence by following the electronic trail of the communication. This process often involves working with Internet service providers (ISPs), VoIP (Voice over IP) providers, and other third-party companies. The steps and evidence involved include: - IP Address Attribution. An IP address identifies a network connection rather than an individual person. While investigators may identify the IP address that communicated with a VoIP provider, multiple users (family members, coworkers, or even hackers) could be using that IP address. This is common in shared networks, where multiple users appear as a single public IP address to external entities.

• Virtual Private Network (VPN) and Proxy Server Attribution. Some swatting attacks are routed through a VPN or proxy server to conceal the source. While these services can obscure the caller’s IP address, investigators can still attempt to trace the connection back to the caller’s device by requesting records from the VPN or proxy provider.
• Caller-ID Spoofing. Perpetrators often spoof the caller-ID to mislead emergency services. While a spoofed number doesn’t directly point to the caller, investigators can still uncover the originating network connection and the VoIP service provider that was used to initiate the call.
• VoIP Provider Records. VoIP providers often maintain records that can be subpoenaed. This data may include registration details (name, email, phone number), session logs (IP address, timestamps, call destination), and billing information (credit card, PayPal account, etc.). Even with minimal registration requirements, the payment method or session metadata can provide investigators with a significant lead.
• Additional Evidence for Attribution. Once investigators have identifying information, they use this in combination with other evidence. This may include analyzing the suspect’s device for application logs, payment history for services used, or even interviewing potential witnesses and assessing any other connecting digital or physical evidence.

Why can the same swatting event produce federal charges and evidence fights?

Because federal prosecutors must prove the elements of a defendant’s charged offense(s) beyond a reasonable doubt at trial, a good defense will seek to raise questions about both the evidence that exists and the evidence that is missing. In swatting cases, this includes scrutinizing the admissibility of the evidence in question. If the government fails to establish admissibility, or if it is unable to present the relevant evidence at trial, then it may be unable to establish liability for a crime beyond a reasonable doubt.

Evidence fights in swatting cases may also include the following issues: - Authentication. Federal Rule of Evidence 901 requires the government to establish the “authentication” of any evidence it proposes to introduce. In swatting cases, which generally rely on digital records, this includes showing that the IP addresses, logs, and other digital or physical evidence obtained are accurate and reliable.

• Constitutional Violations and Fourth Amendment Motions. Defense attorneys in swatting cases can also raise issues related to the Fourth Amendment. If the federal government’s evidence was obtained in violation of the defendant’s constitutional rights, then a motion to suppress this evidence may be appropriate.
• State Prosecution. Under the “dual sovereignty” doctrine, it is possible for both state and federal prosecutors to bring charges based on the same alleged conduct. When state and federal authorities are both investigating the same swatting incident, this can (and frequently does) lead to a complex and prolonged investigation.
• Federal Jurisdiction. In some cases, it may be possible to contest the federal government’s jurisdiction to prosecute. The involvement of a federal agency, such as the FBI, does not by itself establish federal jurisdiction; federal jurisdiction depends on a federal criminal offense and the applicable statutory or constitutional basis for federal authority.

What can a federal swatting conviction cost after injury or death?

Federal swatting convictions under 18 U.S.C. § 1038 can potentially lead to significant prison time. While many federal prosecutions of swatting incidents focus on the base offense of false swatting reports, the statute provides for additional sentencing enhancements if the conduct also leads to serious bodily injury or death. Specifically:

Potential Federal Sentences under 18 U.S.C. § 1038

- With regard to the base offense of conveying false or misleading information under circumstances where it may reasonably be believed and indicates an activity that would constitute a violation of one of the offenses or statutes listed in § 1038(a)(1), Section 1038 generally provides for a maximum five-year imprisonment term.

• If the offense leads to serious bodily injury, this maximum sentence increases to up to twenty years of federal imprisonment.
• If the conduct leads to the death of an individual, it can lead to life imprisonment.

The Federal Sentencing Process

While the maximum sentences for swatting convictions under 18 U.S.C. § 1038 are substantial, they will not be automatically imposed. Instead, federal judges will determine an individual’s sentence after considering the Federal Sentencing Guidelines. These guidelines provide advisory sentencing ranges based on factors that include the alleged offense’s “offense level” and the defendant’s criminal history.

It is important to note that federal judges are not required to sentence within the Federal Sentencing Guidelines’ range. While they must correctly apply the Federal Sentencing Guidelines, they may also impose sentences outside of these ranges through variances, specifically based on reasons particular to the individual at hand.

As a result, while there are multiple potential federal crimes with a range of statutory maximum penalties, this alone does not necessarily mean that consecutive sentences will be imposed in order to achieve a very lengthy overall sentence. In federal cases, defendants convicted of multiple related crimes generally face concurrent rather than consecutive sentences, or they may be given specific “blended” sentences that combine consecutive and concurrent prison terms.

Even when a defendant is convicted of an offense causing serious injury or death under 18 U.S.C. § 1038, a sentence on the higher end of the statute’s penalties may not be warranted. In many swatting cases, for instance, it can be difficult to establish a clear causal link between the defendant’s actions and the victim’s injury or death. In others, a defense focused on procedural errors or constitutional violations may be able to raise enough doubts about guilt and culpability to justify a lighter sentence.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.