By Collin County Criminal Defense Lawyer Jeremy Rosenthal
The Texas Penal Code Section 33.02 criminalizes accessing another person’s computer or computer network without their effective consent. Specifically, subsection (a) of that provision says, “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”
A “Computer” is defined by Tex.Pen.C. 33.01(4) as “an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.” Even though I’m no tech guru, it would seem to me this definition would fit almost any smart phone such as an iPhone or Blackberry.
“Effective Consent” is defined by Tex.Pen.C. 1.07(19). That definition nullifies consent if the consent was gained due to fraud, force, threat or if the person giving consent was not able to make reasonable decisions due to age, disability or intoxication.
A standard breach of computer security in Texas is a Class B Misdemeanor punishable by up to 180 days jail and up to a $2,000 fine. In the event the breach of security causes damages to another person, then the punishment level is governed by the amount of damage suffered. Above $1,500 but less than $20,000 is a State Jail Felony; a Third Degree Felony if above $20,000 but less than $100,000; a Second Degree Felony if over $100,000 but less than $200,000; and a First Degree Felony if above $200,000 of financial loss.
All computer crimes require detail-oriented criminal defense attorneys. There are many technical issues and evidentiary issues which are every-bit as important as the underlying questions which can certainly be complicated as well. Unauthorized access cases have many complications that are similar to other crimes such as theft and even trespassing — due to the nature of whether someone has a legitimate reason or “effective consent” to take a certain action or be a certain place (whether in the real world or in cyberspace). The factual applications are limitless — employment or even unfortunately in divorce scenarios where spouses are gathering information on one another. What some people see as being harmlessly nosy — the law in Texas can recognize as a crime!
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.