Computer Crimes – The Prosecutor Must ‘Put the Defendant’s Fingers on the Keyboard’

December 9, 2011

By Dallas and Collin County Criminal Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Every legislative session comes with new cyber laws altogether or new tweaks on existing laws.  Common online crimes are online harassment, online impersonation, unauthorized computer access and sex crimes such as online solicitation.

The biggest challenge for the prosecutor is to ‘put the Defendant’s fingers on the keyboard.’  In other words, the prosecutor must show that the computer crime, if any, was committed by the Defendant and not someone else on the same computer.  Though police may be able to track online activity to a particular Facebook or Yahoo account and can pin-point it to a particular IP address doesn’t mean they’ve made their case.  They must also eliminate other suspects under the same roof which can be difficult.  Remember too that the prosecution bears the burden of proof beyond all reasonable doubt and the burden never shifts to the defense.

This is where the advocacy of a skilled criminal defense lawyer can help with these types of charges.  Often police and prosecutors will quit on a case once they’ve narrowed the evidence down to a particular IP address if someone lives there with a motive to commit the crime.  In trial, though, the jury must be made to understand the importance of eliminating all other suspects — and thus eliminating all reasonable doubt.

Compare an online case with a case with biological evidence such as DNA.  In a case with a DNA match, the prosecutor can tell the jury that the DNA eliminates every other possible suspect in the state of Texas, the United States, or North America.  On a computer case, the prosecution can’t even eliminate other suspects living in the same house.

The prosecutor must “put the defendant’s fingers on the keyboard.”  Don’t let the jury allow them to get away with any less!

*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 about any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications to the attorney through this blog are not confidential.

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White Collar Crime

September 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

“White Collar Crime” refers generally to corporate crimes including but not limited to fraud, bribery, insider trading, embezzlement, computer crimes, money laundering, identity theft and forgery.  White collar allegations can be particularly detail oriented both with the facts and with the law.

What Makes Charges Scary

Having Defended multiple cases — the pattern you sometimes see is the investigators decide you’re a criminal first and then go about putting their case together later.

White collar cases — with the often hundreds if not thousands of documents tend to be like huge mosaics.  Anyone can take a portion of the documents to paint a certain picture which may not reflect how a business or transaction was really conducted.

If you’re charged with a white collar crime you need a lawyer who can show investigators, prosecutors and juries the 40,000 foot view instead of a handful of cherry-picked documents.

Major Differences Between Other Charges

Unlike every-day “street” crimes, “white collar crimes” can be very document-intensive and require experienced counsel that is experienced in document review and analysis.  Prosecutors may take a 1,200 page stack of documents and breeze over them to make sure it fits their theory of the case — but a white collar criminal defense lawyer doesn’t have that luxury.  A white collar crimes lawyer has to understand that the key evidence that can lead to acquittal can be buried on page 1,034 in the third paragraph from the bottom.

Additionally, the prosecution in white collar cases can fall into many traps.  Charging crimes such as embezzlement and misappropriation of fiduciary property is tricky — and some prosecutors, for example, lazily try to prosecute these cases like it was shoplifting from a big-box store.  An experienced white collar defense lawyer can expose and utilize such prosecutorial errors.

If you’re accused of a white-collar crime you should involve counsel immediately.

*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 any legal advice for any specific situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Computer Crimes: Breach of Computer Security

June 21, 2010

Section 33.03 of the Texas Penal Code covers the breach of computer security — generally known as hacking.  That law makes it a crime for someone to knowingly access a computer, computer network, or computer system without the effective consent of the owner.

As you can tell by reading the language above, this is an extremely broad law with tons of different of applications that can apply to many different circumstances.  It can cover situations where a hacker is trying to access a bank, the government, or even arguably someone else’s facebook account.  It plainly prohibits a person simply getting on someone else’s computer without their knowing — and it would probably prohibit an employee from accessing a computer system of their employer where they have exceeded access although there are other laws that cover that particular scenario.

If the offense is committed without the person obtaining any benefit, then it’s a class b misdemeanor which is the equivalent of a drunk driving charge or possession of a usable quantity of marijuana but less than two ounces.

If the alleged offense attains a benefit, defrauds or harms another, alters, damages, or deletes property, then the offense is charged based on the dollar amount of damages done.

$1,500 or less is a class a misdemeanor, the equivalent of assault charges;

$1,500 to $20,000 is a state jail felony;

$20,000 to $100,000 is a third degree felony;

$100,000 to $200,000 is a second degree felony, the equivalent of aggravated assault with a deadly weapon;

over $200,000 is a first degree felony, the equivalent of murder or aggravated sexual assault of a child.

Punishment for breach of computer security can be extremely steep!!  I’m not an expert in corporate computer systems, by my gut tells me their damages add up QUICKLY in the event someone accesses or deletes their files.

There are tons of legal issues which pertain to proving this type of offense including but not limited to search and seizure issues and highly complex evidentiary issues that accompany computer crimes.  This is the type of offense that typically drive prosecutors crazy — because they can be highly technical and very difficult to prove.  A good lawyer can create a lot of value by working diligently on your case!

If you’re charged with a computer crime, then getting a competent and qualified lawyer is a must!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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 about you own specific situation, you should consult an attorney.

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Computer Crimes in Texas: Online Impersonation

June 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Laws lag behind online crimes. Society gets outraged when stories come on the news about online bullying, for example, but the truth is that the legislature naturally plays catch-up to technology.

Who knew Facebook or Twitter would become as popular as they’ve become… Much less had the foresight to know how to keep people from victimizing one another just two or three years ago?

One recent step taken by Texas is the addition of Texas Penal Code Section 33.07 which criminalizes “online impersonation.” That statute was passed several legislative sessions ago and it criminalizes the creation of an account on a social networking site that not only isn’t you — but is purportedly someone else (or their persona) and was created for the express purpose to harm, defraud, intimidate or threaten ANY person.

The punishment for such an offense would be a third degree felony (2-10 years TDC and/or a $10,000 fine). Similarly, it is a class A misdemeanor to send out a bogus email, text (or similar communication) purported to be from someone else that is intended to harm or defraud another person. (up to a year of county jail and/or a $4,000 fine).

The full impact of these particular Texas laws aren’t really fully understood. The main problem with criminal law as it relates to technology crimes is because the ways to commit crimes out-paces the solutions, prosecutors try to be “creative” with bending and stretching older laws that were never intended to apply to these newer problems. When prosecutors get “creative,” is when rights tend to get violated.

Computer crimes also have heavy overlapping issues with evidence rules, confession rules, and also search and seizure rules. The enactment of new codes (such as 33.07) is only the ‘tip of the iceberg’ for computer crime lawyers.

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 about your own specific case, you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.