It is not uncommon for prosecutors to seek a prison sentence or term of imprisonment for a defendant accused of and arrested for a computer related crime in New York. Although the crimes are generally viewed as white collar crimes and the potential sentences are not as significant as violent or drug crimes, the growing view is that these crimes should no longer be treated with “kid gloves.” While I cannot cite any specific article, it is my opinion as a New York criminal lawyer who handles computer crime investigations and arrests, that prosecutors are taking computer crime offenses more seriously. I believe prosecutors are taking this position because they want to send a message to NYS legislators, as well as those who may commit these crimes, that the government should increase the penalties. If they do not, prosecutors will pursue significant punishment on their own.
With a little personal opinion behind us, the term “computer crime” is vast and encompasses many offenses in New York (each state and the federal government define these crimes differently). In People v. Puesan, 2013 NY Slip Op. 06530 (1st Dep’t 2013), an appellate court addressed four different computer-related crimes. In this case, the defendant, while on leave from his job, and therefore unauthorized to enter its offices or use its computers, entered his employer’s office and installed a keystroke logger computer program on three of the employer’s computers. As a result the defendant was able to use the information he wrongfully obtained with the keystroke logger to gain access to another company program that stored customers’ confidential information (danger, danger!).
Ultimately, prosecutors charged the defendant with and found guilty of 1) Computer Trespass (New York Penal Law 156.10), 2) Third Degree Computer Tampering (New York Penal Law 156.25), 3) First Degree Unlawful Duplication of Computer Related Material (New York Penal Law 156.30), and 4) Criminal Possession of Computer Related Material (New York Penal Law 156.35). The Appellate Division, after review, affirmed the trial court’s holding.
Understanding NY Computer Crime Law & Applicability to Puesan
To find an individual guilty of Computer Trespass (NY PL 156.10), the People must show that the individual “knowingly use[d]…or accesse[d] a computer or computer network without authorization and…knowingly gain[ed] access to computer material.” Addressing the first element, the law defines “without authorization” as “access of a computer service by a person without permission…or after actual notice to such person, that such access was without permission” (NY PL 156.00(8)).
The facts, in this case, show that the employer, through its employee handbook, prohibited employees on disability leave from entering the building, and that “the company deactivated those employees’ access cards.” Speaking to the “computer material” element, the law defines it as “any computer data or computer program” that “is not and is not intended to be available to anyone other than the person…rightfully in possession thereof…and which accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof” (PL § 156.00(5)). The Court, in their analysis, wrote that the “use of user log-in information and passwords obtained” through the keystroke logger program and the gained access to customers’ confidential information did, indeed, prove that the defendant “knowingly gained access to computer material.”
In order to find the defendant guilty of Computer Tampering in the Third Degree, it must be shown that he used or accessed a computer without authorization and “intentionally alter[ed] in any manner or destroys computer data or a computer program of another person” (NY PL 156.20) and, specific to this case, did so “with an intent to commit or attempt to commit or further the commission of any felony” (NY PL 156.25(1)). Here, the Court stated that the installation of a keystroke logger constituted “an alteration of the computer programs or programs on of the computers which it was installed.” The defendant exhibited intent when he knowingly accessed and altered his employer’s computers resulting in access to the computers’ material.
To find the defendant guilty of Unlawful Duplication of Computer Related Material in the First Degree, it must be shown that he, “when having no right to do so…copies, reproduces or duplicates in any manner…any computer data or computer program with an intent to commit or attempt to commit or further the commission of any felony” (NY PL 156.30(2)). Supporting their holding, the Court wrote that the act of “installing a keystroke logging program to reproduce other employees’ user ID’s and passwords amounts to arranging for the duplication of that log-in information.”
Finally, the court addressed Criminal Possession of Computer Related Material. Defined by NY PL 156.35, a person is guilty of Criminal Possession of Computer Related Material when “having no right to do so, he knowingly possesses, in any form, any copy, reproduction or duplicate of any computer data or computer program which was copied, reproduced or duplicated in violation of [New York Penal Law 156.30], with intent to benefit himself or a person other than an owner thereof.” Here, the court showed that the defendant a) arranged for the duplication of computer data, b) possessed that data by exercising control over it, and c) intended to benefit either himself or someone else with the data.
For better or worse, there is not a significant amount of case law addressing the nuances and details of New Computer Crime statutes. Puesan helps address that shortage whether or not the holdings and decision in the case is helpful in your particular circumstances. Do your own homework if you are investigated or arrested for a New York Computer crime. Contact your own attorney determine the best path to successfully challenge the allegations.
To read more about New York Computer Crimes either click on the links directly or go the New York Computer Crime section of Crotty Saland PC where you will find links to an analysis of statues and legal decisions impact this area of law.
Crotty Saland PC is a New York City criminal defense firm representing clients in all stages of Computer Crime litigation in criminal courts throughout the City and suburban counties. Established in lower Manhattan, the two founding New York criminal lawyers at Crotty Saland PC served as New York Count Assistant District Attorneys before starting the criminal defense practice. One of our founding partners, Jeremy Saland, was an original member of the Identity Theft Major Case Section which was the predecessor to the Manhattan District Attorney’s Office Identity Theft and Cybercrime Bureau.