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.

3 Comments | Uncategorized | Tagged: , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Computer Crimes: Breach of Computer Security

August 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

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.

1 Comment | Computer Crimes, Uncategorized | Tagged: , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.