Prosecutors don’t look to kindly upon computer hackers. Whether you are Anonymous, a kid in your parent’s office, a disgruntled employee, former worker stealing an employer’s proprietary code or algorithms as it relates to their business, or anything in between, there are a litany of crimes you could face in a New York State prosecution. Some of the most severe could land you in prison for many years while others may not carry the same level of punishment, but would likely decimate your future employment opportunities. This blog entry will address some of the New York hacking statutes (there is no formal penal code offense called “hacking”). For further information on these crimes, as well as the Federal Computer Crime and Cyber Crime statute of 18 United States Code 1030, go to CrottySaland.Com where there is easily digestible information on these offenses.
Having the FBI knocking on your door at 6 in the morning can be the most frightening experience in your life. They enter, start searching through your most personal belongings, take your papers, records, phone and computers and leave. This is what happened to one of Crotty Saland’s recent clients (we’ll call him “Dave” – not his real name). He reached out to us a short time afterwards, when we put our experience and knowledge to work. After some initial investigation, we discovered that the U.S. Attorney’s Office for the Southern District of New York was investigating an international computer hacking ring and that they believed Dave was involved. They initially intended on charging Dave with the serious felony of Computer Hacking under Title 18, United States Code, Section 1030(a)(i), which carries a potential sentence of 10 years in federal prison.
After a diligent and thorough examination of the evidence and Dave’s background, it became clear that Dave was not an international computer hacker. Rather, Dave was a down on his luck twenty-something, who had a troubled past. Dave had a difficult upbringing, growing up in a violence-filled household, child welfare agents constantly around. Dave witnessed abuse of his mother by his father and his sister’s suicide attempt. Dave sunk into deep depression. He spent more and more time and energy on the computer, eventually suffering an addiction to computer gaming and usage. Dave hit rock bottom when he wandered onto a website that promoted computer hacking – it described how to do it, and sold software that enabled the hacking. In a weak moment, Dave purchased the software and began to use it to look at other’s computer files, including his girlfriends. Dave wasn’t proud of his conduct, but because of his addiction, he couldn’t help himself. Dave didn’t try to steal credit card information, or his victim’s identification. Rather, he was only falling deeper into his computer addiction. Continue reading
It may be great tabloid fodder for the foreseeable future, but hacking computers, PCs, mobile devices and Apple’s ICloud is a very dangerous and risky pastime. Sure, sharing intimate and naked photos of Jennifer Lawrence, Kate Upton and Kirsten Dunst may be good for sophomoric kicks and gossip sites. Arguably, many of the images of the also-rans and lesser knowns who were exposed may have secondary and post embarrassment value in boosting their respective profiles. Irrespective of the consequences to the victims both “good” and bad, computer hacking is a serious Federal crime with equally serious punishment. Make no mistake. You need not be the anonymous celebrity hacker to feel the power and wrath of law enforcement from Federal agents to prosecutors. There will be few, if any, Federal judges who will not come down hard with bail upon your arrest or punish you severely at your sentencing should you be convicted of a computer hacking offense. If nothing else is clear, you and your criminal lawyer will have a long road ahead if you are accused, the target, or a subject of a computer hacking offense. If prosecutors have successfully executed search warrants and found materials on your computers, tracked IP information, and obtained any statements from you during the course of their investigation, your predicament can easily go from bad to worse.
The following blog entry will address some of the potential Federal crimes that the anonymous celebrity hacker – or anyone – would face if prosecuted in Manhattan’s Southern District of New York, Brooklyn’s Eastern District of New York, Newark’s District of New Jersey or any other Federal jurisdiction.
“Revenge Porn” has entered the vernacular of every day New Yorkers and it appears as if it is here to stay. With the proliferation of social media, Revenge Porn, and the pictures or videos that it consists of, reeks havoc on the people who are reflected or portrayed in the online imagery. While there very well may be civil avenues to hold perpetrators of Revenge Porn accountable for their postings and sharing, what, if any, criminal remedies exists? Is there a Revenge Porn statute or crime in the New York Penal Law? For better or worse, the answer is no, but does that mean those who post Revenge Porn are free from arrest or prosecution in New York City or New York State?
In People v. Barber, 2013NY059761, NYLJ 1202644738008, at *1 (Crim., NY, Decided February 18, 2014), the defendant allegedly posted nude photographs of the complainant, his former girlfriend, to his own Twitter account and shared the same with his ex-girlfriend’s employer and sister. This was done without the complainant’s consent. As a result of this conduct, the New York County (Manhattan) District Attorney’s Office charged the defendant with Aggravated Harassment in the Second Degree, New York Penal Law 240.30(1)(a), Dissemination of an Unlawful Surveillance Image in the Second Degree, New York Penal Law 250.55 and Public Display of Offensive Sexual Material, New York Penal Law 245.11(a). The defendant brought a motion to dismiss all charges. Although the Court found that defendant’s conduct was despicable, it nevertheless determined that the defendant did not violate any criminal statute for which he was charged.
As New York Computer Crime lawyers and criminal attorneys who defend clients in matters far more technical than street crimes and most White Collar offenses, we do our best not only to stay on top of the law, but to also share relevant legal decisions that impact how prosecutors and judges handle and manage computer related crimes. The following case, People v. Angeles, 180 Misc.2d 146 (New York Crim. Ct. 1999), may not be a recent decision or a high level court case, but is one that should help those arrested for a New York Computer Crime gain a better understanding of the charges he or she may face. Three of the more common offenses that Assistant District Attorneys and other branches of law enforcement investigate and prosecute are addressed. These crimes are Unauthorized Use of a Computer (New York Penal Law 156.05), Criminal Possession of Computer Related Materials (New York Penal Law 156.35) and First Degree Unlawful Duplication of Computer Related Materials (New York Penal Law 156.30). The first of these crimes, NY PL 156.05, is a misdemeanor offense while the latter two, NY PL 156.30 and NY PL 156.35, are both felony crimes.
In Angeles, the police arrested the defendant and Assistant District Attorneys charged the accused with Unauthorized Use of a Computer (Penal Law 156.05), Attempted Criminal Possession of Computer Related Material (Penal Law 10.00/156.35), Attempted Unlawful Duplication of Computer Related Material in the First Degree (Penal Law 110.00/156.30 ) and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law 165.40).
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!).
With prosecutors seeking to protect proprietary and “secret scientific” information of financial, research, medical and other commercial institutions, it should come as no surprise to criminal defense lawyers regularly practicing in New York courts or those accused of crimes involving computers that Unauthorized Use of a Computer is potential crippling offense. The “lowest” of all New York’s computer crimes, Unauthorized Use of a Computer, an “A” misdemeanor pursuant to New York Penal Law 156.05, occurs when you knowingly use, cause to be used, or accesses a computer, computer service, or computer network without permission. Again, while NY PL 156.05 is not as significant as other New York computer crimes, it is likely one that if convicted would result in not merely your termination from your current employer (assuming it involved an employer-employee relationship), but would be a red flag on any future employment.
Defined in the New York Penal Law, computer service and network are critical terms to analyze in a Unauthorized Use of a Computer arrest. However, equally important is to these elements is whether or not your use of the computer was authorized. In People v. Klapper 2009NY032282 (Crim. Ct. New York County, Decided April 28, 2010), a Manhattan Criminal Court judge issued a surprising decision that puts into question what we all believe is the basis or foundation of permission and authority.
Prosecutors, judges and New York criminal lawyers are seeing more and more arrests for Identity Theft and Unauthorized Use of a Computer. As misdemeanors, Identity Theft in the Third Degree (New York Penal Law 190.78) and Unauthorized Use of a Computer (New York Penal Law 156.05) are very serious and very real crimes in New York. In fact, not only is a conviction for one of these crimes permanent, but a sentence for up to one year in jail is on the table.
Very briefly, one is guilty of NY PL 190.78 when one knowingly, along with a desire to defraud another, assumes the identity of another person or uses that person’s personal identifying information and either commits another “A” misdemeanor crime (such as unauthorized Use of a Computer) or uses credit or obtains money or property of another person. One is guilty of NY PL 156.05 when one accesses or uses a computer, computer service or computer network without permission.
Computer crimes in New York City and throughout New York State are no longer the crimes of the future, but the crimes of today. New York criminal defense attorneys and prosecutors alike are seeing cybercrimes and computer crimes being perpetrated in new schemes and in more creative manners almost daily. Having said that, while the means by which computer crimes such as Computer Tampering, Computer Trespass, Unauthorized Use of a Computer and Unlawful Duplication of Computer Related Material are perpetrated, statutorily defined defenses have remained the same. To be clear, there are many ways your criminal defense attorney may ascertain the best defense against a criminal allegation, but in the realm of computer crimes there are specific defenses set forth in the New York Penal Law pursuant to section 156.50.
New York Penal Law 156.50(1)
Like identity theft crimes, cybercrimes and computer related offenses are becoming more prevalent in New York. In fact, the Manhattan District Attorney’s Office has a unit, the Cybercrime and Identity Theft Bureau, whose main focus is to prosecute this criminal activity. One particular crime, among many, that may be established with relative ease by prosecutors is the crime of Computer Trespass pursuant to New York Penal Law section 156.10. Computer Trespass is defined as follows:
A person is guilty of Computer Trespass when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization and: