Computer Tampering and Computer Trespass in New York
What puts a person or entity at risk of prosecution?
In New York, a person who uses a computer, computer network or related device without prior authorization and then changes or destroys the owner’s data or programs are at risk of prosecution for Computer Tampering.
A person who uses a computer, computer network or related device without prior authorization and in doing so intends to commit a felony is at risk of prosecution for Computer Trespass. These actions are defined under New York Penal Codes § 156.05 – § 156.35, which all relate to computer crimes.
Specifically, if you “hack” a computer system for which you have no prior permission and alter data, you are at risk of prosecution. Similarly, if you use a computer for which you are authorized, but access data that is outside of the specific datasets for which you are authorized, you put yourself at risk of prosecution, as well.
Examples of Computer Tampering or Computer Trespass
The following are examples of situations where charges of computer tampering might be filed:
You work in your company’s payroll department. You access an area of the payroll software to alter your wages or that of a friend or colleague. You could be at risk of being charged with computer tampering.
You work in your company’s accounts receivable department. You access “sensitive” data such as banking or social security information with the goal of monetizing it in some way. For instance, you have obtained customer computer data for the purposes of setting up a firm that competes with your current employer’s company.
In this case, you could also be at risk of being charged with computer tampering.
You are going through a divorce. You hack into the computer system of your spouse’s attorney and alter or destroy documents. Much of the work cannot be recovered, and the attorneys spend hours recreating the lost documents, resulting in damages in excess of $5,000. You could be prosecuted for computer tampering or trespass.
The Legal Definition of Computer Tampering
N.Y. Penal Codes § 156.05 – § 156.35 set out the legal definitions of various forms of computer tampering. The base case is computer tampering in the fourth degree. All potential charges related to computer tampering incorporate the base case, but it can get much worse depending on the financial cost of the damage or physical harm caused to another party.
Computer tampering can rise to the level of the first, second or third degree, all of which carry significantly higher penalties than computer tampering in the fourth degree. Specifically, you face heightened penalties if the damages resulting from your computer tampering:
- Exceed $1,000
- Exceed $3,000
- Exceed $50,000
According to N.Y. Penal Law § 156.20
An individual is legally guilty of computer tampering in the fourth degree when he or she knowingly uses or accesses a computer or computer network without prior authorization and intentionally changes or destroys another person or entity’s computer data or computer program.
Note the use of the words “knowingly” and “intentionally” in that sentence – they’re important, as we’ll see later.
Elements of Computer Tampering
The “elements” of computer tampering are what the prosecutor must prove for you to be found guilty of this offense. Essentially, for a defendant to be convicted in a trial for computer tampering under N.Y. Penal Law § 156.05 – N.Y. Penal Law § 156.35, all the following must be true:
- You knowingly committed the offense.
- You accessed a computer or computer network without authorization.
- Your goal was to alter, damage or even destroy computer data or a computer program.
Let’s dig deeper in order to gain a clearer understanding of the meaning of these elements.
Element #1: Committing the offense knowingly.
To find an individual guilty of computer tampering, the prosecutor must prove that the individual knowingly used or accessed a computer or computer network without authorization and knowingly gained access to computer material.
In the example given earlier of someone who works in the payroll department and accesses the payroll software, the prosecution must prove that the defendant knew that he or she did not have the authorization to access the software when that software could be construed as necessary to do the payroll department job.
Element #2: Unauthorized use of a computer.
The law defines without authorization as “without the permission of the owner.” Using the payroll department example again the prosecution must prove that the defendant did not have his employer’s authorization to access the computer or files in question.
Element #3: Intentionally altering computer data or programs.
The use of the word “intentionally” is key here. For example, in People v. Versaggi, the prosecution alleged that the defendant was guilty because he changed the instructions being received by the computers at the victim’s workplace. In doing so, he prevented the computers from performing their intended functions.
Charges of computer tampering could be pursued instead of or in addition to charges of certain other related offenses, including those listed below:
- Related Offense #1: Computer trespass
According to N.Y. Penal Code § 156.1, a person is guilty of computer trespass, which is a class E felony, when the individual knowingly uses or accesses a computer or computer network without prior authorization and:
- intends to commit a felony; or
- knowingly gains access to computer material.
- Related Offense #2: Unauthorized use of a computer
According to N.Y. Penal Code § 156.05, an individual is guilty of unauthorized use of a computer when he or she knowingly uses or accesses a computer or computer network without prior authorization. This is considered a class A misdemeanor.
- Related Offense #3: Unlawful duplication of computer related material in the second degree
According to N.Y. Penal Code § 156.29, someone is guilty of unlawful duplication of computer related material in the second degree when he or she copies computer material related to the medical history or treatment of someone else and:
- has no right to duplicate the files;
- The victim is readily identifiable;
- The defendant has “intent to commit or further the commission of any crime.”
- Related Offense #4: Unlawful duplication of computer related material in the first degree
Under N.Y. Penal Code S 156.30, a person is guilty of unlawful duplication of computer related material in the first degree when he or she copies computer data or programs:
- and thereby “intentionally and wrongfully” deprives the owner of its economic value or benefit above $2,500, or
- intends to commit a felony.
- Related Offense #5: Criminal possession of computer related material
According to N.Y. Penal Code § 156.35, the definition of criminal possession of computer related material is when a person knowingly possesses a copy of a computer data or program when that person has no right to the material, and intends to benefit from the material or enable another person other than the owner to benefit.
What are some of the essential and impactful cases?
There are several noteworthy cases which can help better understand Computer Tampering charges in New York.
- In the case of People v Agrocostea, the defendant was accused of Unauthorized Use of a Computer and Identity Theft in the Third Degree. The defendant had been terminated from his job, after which he hacked into his ex-employer’s email account and sent an email to a potential new employer.
In the email, he wrote that the firm had erred in terminating him and that he was an excellent employee. The court argued that this was an example of unauthorized use of his ex-employer’s email account.
- In another case, People v Sam Chihlung Yin, the defendant was accused of hacking into the computer network of his former employer, Gucci America, Inc., and sending false messages and interrupting the company’s computer network. As a result of his actions, the prosecution argued, access to important documents and email was lost for 24 hours.
In fact, some data was lost permanently, causing Gucci hundreds of thousands of dollars. After pleading guilty to the charges, the defendant was sentenced to 2 to 6 years in state prison for one count of Computer Tampering in the First Degree and ten counts of Criminal Possession of Computer Related material.
- In another case, the defendant, Peter Jan, was charged with Computer Trespass, Unlawful Duplication of Computer Related Materials, and Grand Larceny related to computer files owned by his former employer, AllianceBernstein. The prosecutor alleged that the defendant, who was moving to a new firm, downloaded computer software licensed to AllianceBernstein without permission or authority to access it.
- In another case, web developer Nial Yusupov was arrested for accessing his former employer’s data and computer servers to set up his own business. He was charged with grand larceny in the second degree, computer tampering in the first degree and unlawful duplication of computer-related material in the first degree.
All of these cases help shed light on the manner in which Computer Tampering is prosecuted in New York.
What agencies detect, investigate, and prosecute Computer tampering?
Computer tampering and computer trespass are investigated and prosecuted by numerous agencies. Generally, local law enforcement will assist in the collection of evidence. Law enforcement has tools to investigate and seize evidence, such as the use of search warrants, preservation letters, subpoenas, and forensic programs.
Sometimes, a company that has uncovered computer tampering will conduct an internal audit if they discover theft or unauthorized use of a proprietary database or network and will turn such evidence over to local law enforcement. If the evidence warrants an arrest, that also generally falls to the local law enforcement agency: the police or sheriff’s office.
Sometimes the Federal Bureau of Investigation gets involved. Even if the alleged crime originates in New York, victims in other states and jurisdictions might be impacted, as well. Once an arrest has been made, if the evidence is sufficient, the local prosecutor will then charge the defendant with the crime. This includes the State’s Office of the Attorney General or the Federal Office of the Attorney General.
What are the statutory penalties if you are convicted of this crime?
Penalties for Violating N.Y. Penal Law § 156.2:
Computer tampering in the fourth degree is the base case. It is generally charged as a Class A misdemeanor. The potential penalties can include:
- Fines ranging anywhere from $500 to $5,000
- Up to one-year imprisonment
- Community service
- Rehabilitation program
All potential charges related to computer tampering incorporate tampering in the fourth degree, but it can get much worse from there, depending on the financial cost of the damage or physical harm caused to another party. Computer tampering can rise to the level of the first, second or third degree, all of which carry significantly higher penalties.
- Computer tampering in the third degree (156.27)
- Class E felony.
- Starts with the base case, but damages exceed $1,000.
- Sentence of up to four years in a New York State prison can be imposed.
- Computer tampering in the second degree(156.26) is even more serious.
- Class D felony.
- Damages exceed $3,000.
- Incarceration of up to seven years in prison
- Computer tampering in the first degree is the most serious computer tampering crime.
- Class C felony.
- Damages exceed $50,000.
- Prison sentence of up to 15 years
Penalties for violating related offense, including computer trespass and unlawful duplication of computer material, are generally less onerous than the steeper computer tampering penalties, but you still need a rigorous defense to try to avoid or mitigate them. We outline the associated punishments below.
- Computer trespass
- Class E felony.
- Up to 4 years in prison
- In addition or sometimes instead, a fine of up to $5,000 or twice the amount garnered by the commission of the crime.
- Unauthorized use of a computer
- Class A misdemeanor.
- One year in jail or three years probation
- Plus a fine of up to $1,000 or twice the amount garnered from the crime.
- Unlawful duplication of computer related material in the first degree
- Class E felony.
- Up to 4 years in prison
- Or 5 years probation
- Unlawful duplication of computer related material in the second degree
- Class B misdemeanor.
- Up to 180 days in jail
- Criminal possession of computer related material
- Class E felony.
- Up to 4 years in prison
- Or 5 years probation
What are some of the additional consequences of being convicted?
If you are convicted of computer tampering or a related crime, you will face serious additional consequences, as well as financial penalties and potential incarceration. Beyond facing up to 15 years in a state penitentiary, your reputation will be tarnished – perhaps permanently. A conviction often makes it difficult to obtain employment. If you hold state or federal licenses, you risk losing them.
Felony convictions are very serious. Unless records are sealed, they are a permanent “flag” that follow people for the rest of their lives. Individuals are barred from voting while in prison and on parole. They are ineligible for enlistment in the U.S. Armed Forces.
What will happen if Incarcerated for more than 15 months?
If incarcerated for more than 15 months, a foster care agency could seek termination of your parental rights. You will be prohibited from possessing a firearm indefinitely. These are all serious consequences, and if you want to protect your rights, you must do everything possible to fight a conviction.
Moreover, immigrants or individuals holding green cards are at risk of being deported if they are convicted of a “crime of moral turpitude” or CMT. This is a murky area, as CMTs are not well-defined under U.S. immigration law, but crimes involving dishonesty and theft can rise to the level of CMT.
Legal Defenses to computer tampering
While these are considered “white collar” crimes, law enforcement and prosecutors pursue these cases vigorously as overall cyber-security concerns escalate. A 2017 Verizon Data Breach report concluded that 62% of data breaches involved hacking.
You do not want to go to jail or pay a fine. You certainly don’t want a conviction for computer tampering on your record. It will make it difficult to find work and people may start to associate you with this crime for the foreseeable future, if not forever.
There are several powerful legal defenses you can use to fight these charges. These defenses rely upon negating parts of the statute. They include:
Defense #1: Unauthorized use was unintentional
One of the defenses for computer tampering is that the defendant had “reasonable grounds to believe that he or she had the authorization to use the computer.”
For instance, in the earlier payroll employee example, the defense could argue that the defendant did not know that he or she did not have the authorization to access the software or computer files in question.
Defense #2: Any alteration to computer files was unintentional
N.Y. Penal Law refers to someone who “intentionally” changes or destroys computer data or files. Another possible defense is that any alteration or damage to the software or files was unintentional.
Defense #3: No intent to do harm
Another possible defense for computer tampering is that even if there was damage or alterations to computer files or software, it was not done intentionally and that there was no intent to harm the computer owner. The defense could argue that any harm was accidental.
Call us for help
For questions about N.Y. Penal Law § 156.05 – N.Y. Penal Law § 156.11, and computer tampering, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. Computer tampering carries the possibility of up to 15 years in prison with numerous other consequences.
A knowledgeable lawyer can help represent you during interrogation and negotiations with the investigator and prosecutor and can also help you formulate a defense strategy. If you or a loved one have been charged with computer tampering, you need to do everything you possibly can to defend your reputation, your freedom, and your livelihood.
Our attorneys have successfully defended clients against computer tampering, charges in the past and understand what it takes to give you your best chance of successfully defending against any computer tampering charges. We have local criminal law offices in your area and are ready to help you or your loved ones.
CITATIONS / SOURCES
2012 NY Slip Op 51098(U) [35 Misc 3d 1241(A)