Damage to a Computer

Tag Archives: computer crime

Damage to a Computer

Posted on June 5, 2013 by Jessica Smith

A caller recently asked this: If a defendant throws another person’s computer against the wall and breaks it, can the defendant be charged with the felony of Damaging a Computer?

We probably all agree that this conduct constitutes injury to personal property. The question about the computer offense however sent me running to my book, NC Crimes (No, I can’t remember everything in it either!).

G.S. 14-455(a) makes it a crime to:

(1) willfully and

(2) without authorization

(3) alter, damage, or destroy

(4) a computer, computer program, computer system, computer network, or any part thereof.

The base offense is a Class 1 misdemeanor. G.S. 14-455(a). However, if the damage is more than $1,000, the offense is a Class G felony. Id. And of course, if the felony version is charged, the relevant amount of damage has to be alleged in the charging instrument and proved at trial.

So back to our example. The defendant willfully and without authorization altered, damaged, or destroyed a computer. I think that the General Assembly probably had viruses and hacking in mind when the statute was enacted, but there is nothing in the statute’s language that so limits its application.

Assuming that the misdemeanor version of the offense has been committed, there has to be alteration, damage, or destruction of more than $1,000 to make a felony. If the computer was destroyed and it was worth more than $1,000, that will probably do it. If it was damaged and there is a repair estimate at over $1,000, that will probably do it as well. In the caller’s example, the victim presented evidence that the original purchase price of the computer was more than $1,000. Given that we measure value for purposes of felony larceny by fair market value at the time of the offense, I’m not sure that evidence will suffice, particularly when new models and software quickly depreciate the value of even relatively new computers.

I don’t know of any cases on point so these are just my musings. Let me know if you have thoughts on the issue.

Category: Crimes and Elements, Uncategorized | Tags: computer crime, computers, damaging a computer, injury to personal property

Update on Unauthorized Access to a Computer

Posted on January 4, 2011 by Jeff Welty

As I noted in a previous post, it is a crime under G.S. 14-454(b) “willfully and without authorization . . . [to] access[] . . . any computer.” I posed a few scenarios in that earlier post, including one in which a judge tells a law clerk not to use the internet during business hours for non-work-related purposes, but the law clerk nonetheless looks at a sports web site during ACC basketball season. I asked if the law clerk had committed a crime, and suggested that the answer appears to be yes, much to the dismay of law clerks — and other office workers — everywhere.

No state cases address this issue, but thanks to a blog post by Professor Orin Kerr, I recently came across a relevant federal case. (A federal statute, 18 U.S.C. § 1030, makes it a crime to “exceed authorized access” to a computer.) The case is United States v. Rodriguez, __ F.3d __ (11th Cir. Dec. 27, 2010), and the basic holding is that a Social Security Administration employee violated the federal unauthorized access statute when he looked up the Social Security records of some acquaintances for personal reasons, in violation of the Administration’s policy about data access. The court rejected the defendant’s argument that the statute only applies when a person makes criminal or fraudulent use of the information accessed.

Rodriguez isn’t quite analogous to the law clerk hypothetical, because it involves an employee accessing his employer’s own database rather than an outside website. And the facts of Rodriguez are also much creepier than the law clerk example — it sounds like the defendant in Rodriguez was using the information he obtained to pursue women to whom he was romantically attracted. But the court’s endorsement of the simple rule that violating an employer’s limitations on computer use amounts to unauthorized access supports the conclusion that the law clerk committed a crime by checking the web site.

Professor Kerr thinks that Rodriguez is “right on its specific facts,” but is perhaps understandably troubled by the implications for cases like the law clerk hypothetical. He suggests that vagueness doctrine, which requires criminal statutes to delineate clearly between permitted and prohibited conduct, might be a way to restrict the reach of the federal unauthorized access statute. I’m a little skeptical about that with respect to the federal law, and the idea strikes me as a complete non-starter as to the state statute. A very plain definition of “authorization” appears in G.S. 14-453: as it relates to using computers, it means accessing a computer “in a manner not exceeding the consent or permission” of the person in control of the computer. So whether the law clerk’s conduct ought to be criminal or not, under current law, it pretty clearly is criminal.

One last thought. The computer trespass statute, G.S. 14-458, makes it a crime to “use a computer . . . without authority and with the intent to” do several enumerated things, generally involving harm to the computer or theft of data. It’s a Class 3 misdemeanor if no damage is done, and a Class 1 misdemeanor if there’s under $2,500 of damage. Given that G.S. 14-454 makes it a Class 1 misdemeanor to access a computer without authorization, with no proof of purpose required, it seems like prosecutors would be well advised to charge that offense rather than computer trespass. It’s easier to prove — essentially, it’s a lesser included — yet it has at least as strong a penalty. So maybe it should be called a “greater included,” or something.

Category: Crimes and Elements, Uncategorized | Tags: computer crime, computers, unauthorized access

Solicitation of a Child by Computer

Posted on February 24, 2010 by Jeff Welty

When a person over 16, using a computer or other electronic device, and with the “intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands” a person under 16 and at least five years younger than the first person to meet for the purpose of committing an unlawful sex act, the first person has committed the crime of solicitation of a child by computer in violation of G.S. 14-202.3. The crime also takes place if first person believes that the second person is underage, even if that is not the case.

The Court of Appeals recently decided State v. Fraley, a case in which a 32-year-old man interacted in a computer chat room with a police officer posing as a 14 year old girl. After various discussions of a sexual nature, he eventually arranged to meet her at a mall near her home. When he appeared at the mall, he was arrested.

I wanted to take a moment to make three points worth noting about solicitation cases, each of which is suggested to some extent by Fraley.

In Fraley, the court of appeals adopted a broad interpretation of “entice[]” and “advise[].” Although I didn’t read Fraley’s brief, the opinion suggests that he argued along the following lines: sure, we talked about meeting and having sex, but I just asked her to do that — I didn’t offer her anything in exchange, so I didn’t entice her to do it, and I didn’t recommend that she do it, so I didn’t advise that she do it. That’s not a frivolous argument. A similar federal statute, 18 U.S.C. § 2422(b), includes “persuade” in its list of prohibited activities, and one could reasonably argue that the absence of that term from G.S. 14-202.3 is significant. On this view, G.S. 14-202.3 is intended to address cases in which the defendant has coerced the underage person or offered him or her an explicit material enticement, like a promise of a modeling career, United States v. Barlow, 568 F.3d 215 (5th Cir. 2009), or a motorcycle, United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). Even in Fraley, perhaps one could argue that the defendant offered the inducement of physical pleasure, since he promised “good sex.” But the court’s analysis wasn’t that fine-grained. Instead, it cited dictionary definitions of “advise” and “entice,” as well as cases from other states, to conclude that the statute sweeps “rather broad[ly],” and includes Fraley’s conduct. The court didn’t say so explicitly, but the opinion leaves the impression that any effort to arrange a sexual rendezvous with an underage person falls within the statute’s scope.
Proving solicitation cases is easier when the defendant shows up at the meeting location. The police waited to arrest Fraley until he arrived at the mall and approached a person dressed as the undercover officer said that she would be dressed. That’s strong evidence that he intended to commit an unlawful sex act, while if the police had arrested him at home, he might have been able to argue that he was just indulging his fantasies online but never intended to go through with the meeting. Such an argument isn’t necessarily a winner, but it has some support. Compare, e.g., United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (insufficient evidence to support a conviction for attempting to entice underage person into illegal sexual activity where the defendant proposed having sex but neither followed through with a meeting nor made unmistakable preparations such as renting a hotel room or buying a plane ticket; the evidence showed only that the defendant was full of “hot air”), with State v. Ellis, 188 N.C. App. 820 (2008) (holding that a search warrant application showed probable cause to believe that the defendant had committed an offense under G.S. 14-202.3 where his computer contained evidence of sexually explicit communications with an officer posing as an underage girl; the defendant has suggested meeting, but apparently had never attempted to meet).
The statute now applies not just to computers but also to “any . . . device capable of electronic data storage or transmission.” When Fraley arose, the statute applied only to computers. Because most of the interaction between Fraley and the undercover officer took place in a computer chat room, this wasn’t a problem. But some of the contact took place by telephone, and there may have been some text messaging as well (the opinion refers to “an offline instant message”). These days, it’s easy to imagine a solicitation case arising based solely on text messaging, and its clear that the current version of the statute covers that.

Category: Crimes and Elements, Uncategorized | Tags: computer crime, computers, fraley, sex offenses, solicitation

Unauthorized Access to a Computer

Posted on February 12, 2010 by Jeff Welty

What does it mean to access a computer without authorization? It’s an important question. North Carolina’s computer crime statutes appear at G.S. 14-453 et seq. Among other things, the statutes make it illegal “willfully and without authorization . . . [to] access[] . . . any computer.” The crime of unauthorized access is more serious if the computer in question is a government computer, or if the person accessing the computer is doing so for fraudulent purposes. The principal federal computer crime statute, 18 U.S.C. § 1030, contains somewhat similar provisions.

At first, the issue of authorization seems straightforward. The North Carolina statutes define “authorization” as “having the consent or permission of the owner . . . to access a computer . . . in a manner not exceeding the consent or permission.” But consider a couple of scenarios.

1. A law clerk is instructed by the judge for whom she works that she should not use her work computer to access the internet, except for legal research. The clerk generally abides by the judge’s policy, but the morning after the Duke-UNC basketball game, she can’t resist going to the Duke Basketball Report to read about the Devils’ big win. Has she “exceed[ed] the . . . permission” of the judge and thereby committed a crime? (I know that some of you would say that rooting for Duke is a crime, but that’s not what I mean!)

2. A high school student joins MySpace under a false name, creating a bogus profile inspired by a satirical character who appeared in a story the student read on The Onion. Although intended as a joke, this violates MySpace’s terms of service policy, which requires all profiles to be created under the user’s true name. Did the student access MySpace’s computer servers “without authorization”?

3. A grant writer for a nonprofit is terminated for poor job performance. She is told to leave the building immediately, but instead, she returns to her office briefly and removes several personal files from her office computer. Has she committed a crime?

Having once been a law clerk who was instructed not to access the internet except to do legal research, I hope that the answer to (1) is no, but I fear that it is a straightforward yes. (I can neither confirm nor deny ever having visited the Duke Basketball Report during my clerkship year, however.)

Scenario (2) is, as they say in Hollywood, “based on a true story,” except the real story is the sad and serious Megan Meier/Lori Drew case, also known as the MySpace suicide case. The case is described here, as is the presiding federal judge’s ruling that violating a website’s terms of service does not amount to accessing a computer without authorization, because “[i]t basically leaves it up to a website owner to determine what is a crime. And therefore it criminalizes what would be a breach of contract.” My immediate reaction is that all crimes involving lack of consent or lack of authorization “leave it up to [the person who grants, withholds or limits consent] to determine what is a crime.” However, the federal Department of Justice initially appealed the ruling, then dropped its appeal — so perhaps the ruling is more soundly grounded than it appears at first blush.

Scenario (3) is a significantly modified version of the facts in State v. Ramos, 363 N.C. 352 (2009). Ramos was reversed based on an instructional error, and the opinion doesn’t really answer the question I posed. Generally, it seems to me that the employer can bar the former employee from accessing the computer, meaning that the conduct described in the scenario is a crime. However, I suspect that as a matter of civil law, the employer must make the employee’s personal files available to the employee within a reasonable period of time, at least if it didn’t violate company policy for the employee to store personal files on her work computer.

If you have other interesting or questionable scenarios to share, please send me an email or post a comment. Those interested in further reading can check out this post about a recent federal court of appeals opinion in this area.

Category: Crimes and Elements, Uncategorized | Tags: computer crime, computers, myspace, unauthorized access

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