How We Defend Computer Crime Charges
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How We Defend Computer Crime Charges
The most basic computer crimes are governed by New York State Penal Law 156: Offenses Involving Computers. While this isn’t the only statute involving computer use, it is the one that covers the crimes of hacking and downloading illegal materials.
In a world where we all use computers every day it is important to understand both the statute and how one might defend against a charge that the statute has been violated.
See also: Cybercrimes: How the Internet Has Changed NY Theft Laws.
Computer Use Without Authorization
You are guilty of this crime if you knowingly used a computer without the permission of the owner, after that person has given you notice that you may not use it.
The user of the computer must have told you no verbally, given you a written notification, posted a sign on or adjacent to the computer that denied permission, or set up the computer to give you a verbal or electronic warning.
It also covers accessing services when you know you shouldn’t. This happens any time you break into someone else’s account, such as a Gmail account, Facebook account, Dropbox account, or any other account.
How would we defend you against this misdemeanor charge? We’d have to show proper notice wasn’t given, and/or that all the accounts you accessed were either your own, or accessed with an owner’s permission for legitimate purpose.
If convicted of this crime you could face up to 1 year in jail.
You are guilty of this crime if you access a computer without authorization and you do so in one of two circumstances.
- You do so with the intent to commit a felony.
- You do so with the intent of knowingly gaining access to computer material that you know you shouldn’t receive.
Computer trespass is a Class E felony. If convicted of this crime you could face up to 5 years in jail.
There are four degrees of computer tampering.
You are guilty of 4th Degree computer tampering if you use a computer without authorization and intentionally alter another person’s data or programs. You are guilty of this crime if you make any change, even if the change was minor or seemingly harmless. 4th Degree computer tampering is a Class A misdemeanor.
You are guilty of 3rd degree computer tampering if you make an alteration with intent to commit a felony. You can also be guilty of 3rd degree computer tampering if you’ve previously been convicted of any other computer crime. And you can be charged with 3rd degree computer tampering if your alterations cause over $1,000 of damage. Keep in mind that damages can be calculated in terms of the worth of the time the victim spends fixing the problem you created. You do not have to cause a direct monetary loss to be charged with this crime. This one is a Class E felony.
You are guilty of 2nd degree computer tampering if you cause damage in excess of $3,000, or if your tampering involved medical records. This is a Class D felony, which means you can be sent to prison for up to 7 years.
You are guilty of a 1st degree computer tampering charge if you cause over $50,000 in damage. This is a Class C felony, which means you can be sent to prison for up to 15 years.
If there is any crime that is likely to be committed by an everyday person who otherwise would never dream of committing a criminal act, it’s this one. You commit this one any time you copy information, data, or programs that do not belong to you.
The most common example is the creation of pirated or “bootlegged” movies.
In the 2nd degree, this crime is a Class B misdemeanor. This charge applies if you were duplicating medical records.
In the first degree, your copying has deprived the original owner of $2,500 in value or more, or you copied the materials with intent to commit a felony. This is a Class E felony. And yes, a bootlegged movie can easily deprive the original owner of $2,500 in value.
Criminal Possession of Computer Related Material
Remember those bootlegged movies? You didn’t create them, but maybe you downloaded them. At that point, you could be charged with criminal possession. The same is true for any pirated PDFs or musical files.
To be convicted of this crime you must possess these materials with an intent to benefit yourself, or a person other than the owner of the material. The defense here would be that you didn’t have this intent. For example, you may have a PDF that you thought was legitimately free, or have materials in your system that you never meant to download but which came along with another, legitimate download.
See also: Is Ignorance of the Law a Defense to NY Criminal Charges?
Running an Unauthorized Electronic Sweepstakes
This doesn’t come up a lot, but it is part of the penal code. If you do run any kind of sweepstakes, make sure you’re doing it in accordance with New York State Law.
The Main Defense
Though we named several potential defenses for some of these crimes, there is one more that applies to all of them: the Reasonable Grounds defense.
If you committed one of these acts, but had reasonable grounds to believe you could do what you did, then you can’t be convicted. But reasonable is defined by the jury, or perhaps by the ADA if we’re trying to get him or her to drop charges.
See also: How a New York Attorney Gets Charges Dismissed.
You’ll need a good attorney to make this or any other defense, one that knows his or her way around computer crimes.
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