Conviction overturned in cyberattack case
A cyberattack hit the Eastern Band of Cherokee Indians’ computer network in December 2019.
The Cherokee Supreme Court has vacated the conviction of a man who was prosecuted for his alleged role in a cyberattack that crippled the Eastern Band of Cherokee Indians’ computer network in December 2019.
“After careful review, we hold that under the Cherokee Code, evidence of an unauthorized login, without more, is insufficient to convict for the misuse of Tribal property,” the opinion reads. “Because the Tribe failed to provide evidence of appropriation of Tribal property for Defendant’s own use or use of another, as required by the Cherokee Code, we vacate Defendant’s conviction.”
Up until the cyberattack, Benjamin Cody Long, 36, was employed as lead systems administrator for the tribe’s Office of Information and Technology. But shortly after 8 a.m. Thursday, Dec. 5, 2019, his supervisor told him he was being placed on paid administrative leave pending investigation into prior employment infractions, according to the facts laid out in the Supreme Court opinion. Afterward, his credentials, account information, employee badge and laptops were taken from him. However, Long did not turn his cell phone SIM card in until 9 a.m., telling his supervisor that he’d left it at home that day and had to go retrieve it.
As lead systems administrator, Long had access to multiple high-level accounts. A review of records tracking logins to Microsoft Windows accounts on the tribal network showed that one login had occurred to Long’s Domain Administrator Account after he was placed on administrative leave but before his account was disabled around 8:30 a.m. that day.
On Saturday, Dec. 7, the ransomware attack unfolded, shutting down tribal network services and preventing the tribe from accessing documents and data. The process of decrypting computers, recovering infected documents and migrating everything to a new, safe network took weeks.
On March 2, 2020, Long was charged with seven counts of misusing tribal money or property for offenses alleged to have occurred Dec. 5, Dec. 6 and Dec. 7. All charges but one, a single count of misusing tribal property, were eventually dismissed, and a trial was held to determine Long’s culpability of the remaining charge.
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Long was convicted by jury and sentenced to 454 days’ imprisonment, with credit for 454 days already served. But he appealed the conviction, alleging, among other arguments, that the prosecution didn’t produce the evidence needed to prove he had committed a crime.
The court agreed.
In order to convict Long for the crime, the court’s opinion reads, the prosecution would have to prove several elements, including that he appropriated tribal property for his own use or that of another. The Supreme Court disagreed with the tribe’s argument that simply logging into the network without permission amounted to an “appropriation” of tribal property and ruled that because the statute laying out the appropriation crime defines it as appropriation of tribal property “to his own use or that of another,” proving guilt must include proving to what use the property in question was put. The prosecution failed to do that.
“Taken in the light most favorable to the Tribe, the evidence shows that Defendant logged into his administrator-enabled account after he was placed on leave and was instructed not to access network resources,” the opinion reads. “The Tribe provided no evidence that Defendant obtained information, downloaded data, changed settings, or installed or ran software: the evidence showed no conduct beyond simply logging into the account without permission. Further, there was no evidence of the use to which Defendant put Tribal property.”
However, the court said, the case is a difficult one in part because it deals with “the translation of legal concepts traditionally concerned with money or physical property to the context of digital access.”
“If the Tribal Council wishes to directly address misconduct involving computer crimes, we respectfully suggest it adopt a computer crime code provision as have other jurisdictions,” reads a footnote in the opinion.
That said, the decision does not mean that the tribal law Long was accused of violating can never apply to computer crimes.
“Had the Tribe provided evidence of Defendant’s intent while accessing the network or that he had installed software, accessed files, or otherwise actually made use of his access, that evidence may have been sufficient to show that Defendant’s appropriation of Tribal property was ‘to his own use or use of another,’” the opinion reads. “In this case, the Tribe simply failed to carry its burden on that element.”
Long said he’s thankful to his friends, family and legal team for seeing him through.
“I’d like to give thanks to my attorneys Brent B. Smith, Robert Osley Saunooke, Andrew Banzhoff for believing me and being advocates,” he said. “Clark Walton from Reliance Forensics. My friends Kristy Maney Herron, Steven Smith, Mike Pellicone, Justin Reed. Also, Sasha Jumper. Most importantly I’d like to thank my Parents and my kids, who not only had to share the burden of this nightmare, but believed in me and went through this ordeal as well.”
EBCI Attorney General Michael McConnell declined to comment on this story.
