Defending Cyber Crimes

Texas has enacted state laws for computer crimes. They are found in Chapter 33 of the Texas Penal Code.

Breach of Computer Security

Breach of computer security is set out in Texas Penal Code Section 33.02. A defendant commits this offense if he or she:

  • Knowingly accesses a computer, computer network, or a computer system;
  • The access occurs without the effective consent of the owner

Thus, there does not necessarily need to be any information taken or money stolen as a result of the unlawful access in order for a defendant to be found guilty of breach of computer security.

There are certain circumstances that can result in an elevation of the severity level and accompanying punishments of the crime:

  • If the defendant accesses the computer, computer network, or computer system with the intent to alter, damage or delete property (in this case, the aggregate amount of damage caused is considered in determining the precise punishment received).
  • If the defendant obtained identifying information of another person;
  • If the defendant accessed two or more computers, computer networks, or computer systems in obtaining identifying information of another.

Texas law permits the government to consider a number of separate “breaches” against a victim as one offense. If the government does so, it can take the damage caused by each breach (or the number of computer systems used in total) and add these together.

This can cause what might otherwise be ten or twenty (for example) separate breaches, each causing $1,000 or less in financial damage to the victim, to be lumped together and prosecuted as if the defendant committed a single act of breach of computer security resulting in $10,000 or $20,000 dollars.

Defenses to Breach of Computer Security

Texas law recognizes that a defense to a charge of breach of computer security exists for a person who accesses a computer, computer network, or computer system to facilitate a lawful search or lawful seizure of that computer, computer network, or computer system for a legitimate law enforcement purpose. In other words, the law protects an individual who accesses a computer, computer network, or computer system upon the request of law enforcement pursuant to a search warrant.

It is also a defense to a charge of breach of computer security if the person charged with the offense accessed the computer lawfully or with the consent of the owner of the computer, computer network, or computer system.

Online Impersonation

Online impersonation (criminalized by Texas Penal Code Section 33.07) prohibits a person who does not have the consent of another to:

  • Use the other person’s name or persona to create a web page or a web page on a commercial social networking site, or posting one or more messages using a commercial social networking site or Internet page, with the intention to threaten, intimidate, defraud, or harm another person;
  • Sending an email, text message, instant message or similar communication to another using the identifying information belonging to another:
  • Without the consent of the other person;
  • With the intent to cause the recipient to reasonably believe the other person authorized or transmitted the communication; and
  • With the intent to harm or defraud any person.

Defense of an online impersonation charge starts with an “overbreadth” challenge.  This defense asserts that the statute is unconstitutional because it violates the first amendment.  Since the defense is that the entire statute is unconstitutional, the evidence does not matter.

Defenses to a charge of online impersonation exist for individuals who are employees of the following entities and whose actions consist only of actions taken in the course of their work for these entities:

  • A commercial social networking site;
  • An internet service provider;
  • An interactive computer service;
  • A telecommunications provider; or
  • A video service provider.

The activity must be undertaken in the course of one’s employment for one of these entities. Under the language of the statute, it is not a defense if a person exceeded the scope of his or her job duties. For example, it is not likely the statute can be used to defend an employee of a social networking site who used his or her job position to send threatening or messages asking for money from his or her ex-spouse’s family and friends while posing as his or her ex-spouse.

Federal Computer and Cyber Crime

In addition to state laws prohibiting certain computer-related activity, federal law also prohibits certain criminal activity involving computers. For example, the Computer Fraud and Abuse Act prohibits a person from obtaining information, transmitting certain information, or otherwise conducted on a “protected computer.” This can include:

  • Affecting the use of a computer by the United States government or an agency thereof;
  • Obtaining classified or protected information from the U.S. government;
  • Transmitting a virus or similar program;
  • Transmitting threats to damage a protected computer or obtain information from a protected computer with the intention to extort another.

A “protected computer” includes one that:

  • Is exclusively used by a financial institution or the United States government or any computer that affects the computer’s use by and for the financial institution or the U.S. government; or
  • Is used in or affects interstate or foreign commerce.

Most personal computers, including home computers and cellular telephones, can fall under the definition of a “protected computer.”

Depending on the precise situation, placing a Global Positioning System (GPS) device on the car of another may be considered stalking and may result in either state or federal charges.

Defenses to federal computer crimes might try to focus on whether the computer was a “protected computer” within the statutory definition or challenge whether the prohibited activity affected the U.S. government, an agency of the U.S. government, or interstate commerce. This would impact the jurisdiction the federal courts to hear such a case.

Please call (713) 487-7575 if you need representation for a computer crimes case.

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