In today’s world, everything is evolving and developing at a fast rate. Technology has been at the forefront of this evolution because it has greatly grown in a span of very few years. The internet has paved new ways of going about with life, including carrying out important operations like business transactions and storage of important information as well.
Despite this commendable growth in technology, there are several mishaps and introduction of cybercrimes, including misdemeanors and felonies. These allegations may unfairly befall an innocent suspect, who may have been completely innocent of the crime or may have needed to trespass a computer or a computer network, driven by several compelling or necessitation factors. Virginia Criminal Attorney law office, headed by Sheryl Shane, has over twenty-five years of experience in the field of criminal defense and is sure to offer you the best possible defense in court against a claim of computer trespass.
Despite several laws put in place to punish a criminal offender charged with the cybercrime of computer trespass, it also has equitable provisions that require a suspect to be treated innocent until proven guilty, among other rights to be upheld. Your criminal defense attorney has the duty to protect you and ensure the enforcement of these rights, even as your hearings and trials continue.
What is Computer Trespass?
Computer trespass is a cybercrime that involves using illegal means to gain unauthorized access to a computer device that does not belong to you, with an intention to carry out malicious deeds. The crime is commonly known as hacking. The prerequisite for being charged with the crime of computer trespass and getting a maximum penalty is that you must be proved to have had an intention to carry out malicious deeds. They include destroying data, changing the computer or computer network format, sharing data found unlawfully, or even damaging the computer such that it freezes or stops working. The damage may be temporary or permanent.
The damage caused is not restricted to the physical computer alone, but affects the programs on the computer too. The network I.P address may be disfigured, which is what traces all computer operations to a certain location. Similarly, the programs of the computer, which are written commands that help it run, may be altered, to make the device act in a different way than it should. Similarly, computer trespass often interferes with the computer operating system, which is different for different computer models. For example, Macbooks run on IOS systems, while most other models use the Microsoft Windows operating system. The distortion of the systems will, therefore, lead to a failure for the computer to run smoothly.
The Law Against Computer Trespass
The Virginia law has made several provisions that define what computer trespass is, prohibits it, and gives the consequences of being found guilty of such a crime, which is treated as a felony in the state of Virginia. Subsection 18.2-152.7 exclusively deals with computer trespass. A person is deemed to have committed a crime if he or she uses a computer or computer network obtained by illegal means to permanently erase data, illegally make copies of documents that he or she has no rights to, causes a malfunction in the computer system or causes personal injury to any individual using the computer.
The actions done by a computer trespasser are often done with intent, termed Mens Rea, which needs to be present and proved for the offender to get a proper sentence. This is because courts cannot convict a criminal offender without the satisfaction that all elements of a crime are present, as this would amount to cruelty and injustice. Owing to this fact, the Virginia code has established different types of punishment for offenders proven to have committed the crime intentionally meaning with malice aforethought, and for those whose malice cannot be proven.
The distinction is made under subsection 18.2-152.7 B, which states that if the act of computer trespass is done intentionally, the offense is punishable by the issuance of a class 3 felony. A class 3 felony is a very heavy penalty, that attracts up to 20 years in prison, with a possible minimum sentence of 5 years behind bars. The minimum sentence may only be available if proper mitigation is used in court, which may vary. If the judge finds it fit, he or she may issue a fine penalty, amounting up to $100,000.
If the offense is done by unlawful means but lacks the requisite Men’s rea or intent, a class 6 felony is issued on the offender. The penalty is much lower than the class 3 type, as the punishment may be anywhere between 1 to 5 years in prison. This is still a very long time to spend behind bars, and the courts have enforced these punishments in order to deter the kind of behavior associated with the crime of computer trespass.
Common Crimes Related to Computer Trespass and their Penalties
As established, computer trespass offenders often have an intention to obtain, destroy, share, or distort data that may be stored in the computer device or network they invade. The motives vary from committing forgery, fraud, or even defamation, which involves sharing private data such as photos to the public in an effort to humiliate whoever is targeted.
As a result of the varying intentions, several crimes have developed, which are related to computer trespass, which is the primary action of gaining actual access to the computer invaded. What comes next is what the hacker does with the newfound information, which is often if not always illegal. We discuss the crimes in detail below.
1. Computer Fraud
Fraud is broadly described as obtaining information or goods by the use of false pretenses. The false pretenses may morph into gaining access into a person’s computer or network and assuming their identity in order to access whatever the offender may be looking for. The Virginia code elaborates on the crime of computer fraud under subsection 18.2-152.3. The prerequisite intent needed to prove the crime is that the offender must have intended to obtain goods or services by the use of false pretenses. An offender may also have an intention to commit larceny, which can be described as the illegal taking of personal property belonging to another, with the intention to permanently deprive the person of the property, immaterial to the offender that the person is the rightful owner. The offender may end up converting the property, which means that he or she has transferred ownership to a third party who is probably innocent or unaware of how the goods were obtained. The law also provides several penalties for computer fraud as it does for computer trespass because the results of the crime are often destructive and devastating for the victims.
The actions of an offender usually involved acts of computer trespass, such as erasing certain data which may hold transaction records. The permanent deleting of the records is to ensure that he or she covers the evidence resulting in bringing him or her close to the suspicion of committing the crime. The offender might also unlawfully distribute information to other parties to the offense who are capable of tapping resources and especially liquid funds, so as to deter the trail of events by creating multiple possible locations and perpetrators of the crime. On top of that, after obtaining all the information required, a fraudster may decide to completely destroy or freeze a computer or computer network, by introducing viruses or changing the programming code used to command computer operations. He or she may do this in order to create a completely new identity using the information of the robbed person so that they can illegally benefit from any affiliations or benefits a victim may have.
If the value of the goods or property stolen amounts to $200 or exceeds it, the law views it as a major offense and has indicated that the penalty amounts to a class5 penalty. An offender may be facing a jail term of 1 to 10 years, depending on the circumstances surrounding the crime, which are left at the discretion of the judge or jury presiding over the case. On the other hand, if the offense of computer fraud leads to stealing of property of goods that are not of a value of more than $200, an offender could be charged with a class 1 misdemeanor. This will amount to up to 12 months in prison, which again will depend on what the circumstances leading to the fraud were like, upon the court’s discretion. A judge may also issue a penalty of a fine, whose payment of cash may be up to $2500. This is an expensive cost to bear, especially because an offender’s arraignment in court obviously means that his or her operations were botched. In other scenarios, a judge may decide to award both the penalty of a jail term and the payment of a fine. This is commonly applied where the results of the fraud have created big losses for the victim, or have brought about irreversible outcomes.
A victim of computer fraud should consult his or her lawyer, to establish what facts will be applicable in court through the prosecution, to prove that the fraud can be directly linked to the offender, so as to have a strong case to prove.
2. Harassment by Computer
Quite often, the motive to commit a crime of computer trespass is tied to the intention to harass another person through the means obtained by gaining access to the computer or computer network. Subsection 18.2-152.7.1 creates a provision for the offense of harassment by computer. The provision states that any person who may have the intention to intimidate, coerce, or harass any person by exploiting a computer or computer network to communicate obscene or profound language is guilty of harassment by computer.
In relation to computer trespass, a person may opt to harass another through a hacked computer, in an effort to conceal their identity and place the blame on the actual owner of the computer or computer network that has been hacked. Harassment comes in different forms, which may include sexual harassment, blackmail, or even making of racist and bigot comments in an effort to intimidate another person. It , therefore, becomes clear why an offender may opt to trespass another person’s computer or computer network, which is because he aims at getting away with the harassment by computer.
Examples of scenarios that may be classified as harassment are whereby the offender obtains personal and private images of a rightful owner, which are, in most cases, explicit. The harasser will often use blackmail to extort large amounts of cash from the victim, who is often innocent and is usually trying to salvage his or her image against the possible public consumption of his photo data, which is what an offender uses as a threat. However, if the person being blackmailed was involved in illegal activities as well, like capturing of pornographic images without consent, the offender may apply that circumstance as a mitigating factor in his or her conviction.
Sexual harassment by computer is also very common, especially where the offender, as in blackmail, may have information that, if released, may be detrimental to the victim. People who harass others by computer sexually also often prey on minors and come disguised as promotional pages that are willing to pay for virtual sessions with minors, soliciting them to engage in sexual acts. The Virginia code includes this under subsection 18.2-152.7.1, where it states that any language suggesting obscenity may be treated as harassment. The situation is very sad, especially because the penalties are not as heavy on the offender, who may have caused permanent trauma and embarrassment on the victim of harassment.
The penalties provided are still under the same section, whereby the person found guilty of harassment by computer may be charged with a class 1 misdemeanor. This will amount to a jail term of up to 12 months in prison, similar to an offense for computer fraud for amounts less than $200. In addition to this, the judge is also at the discretion to issue a fine penalty for amounts of up to $2500 or, in the most severe cases, issue both penalties to the harasser.
Possible Defences for the Crime of Computer Trespass
As an offender facing a criminal charge of computer trespass, there are several defenses that are available to you through the help of your lawyer. These defenses are considered in court based on the circumstances surrounding the act or omission done, resulting in the crime. It is up to your defense lawyer to undertake due diligence in establishing the relevant factors of a case and apply them relevantly to your defense, for any possible chance of a win in court. We have analyzed and established several possible defenses which we elaborate on below.
The first possible defense is that of compulsion. This applies where an offender acts under duress or undue influence from someone with greater authority or power than him or her. The person with greater authority uses coercive or forceful means that include threats of harm or mistreatment on the person if he or she does not carry out the action, in this case, computer trespass. The court should consider circumstances, for example, where a student is forced by an instructor to carry out computer trespass, which may be unknown to the defendant in question. The cases may also be extreme in some cases, whereby actual physical force is exerted on the defendant who ends up committing the crime, in an effort to save his or her life. Compulsion may also be as a result of circumstances, where computer trespass may be the only means to release themselves from endangering situations. A practical example may involve a situation in which a person is locked up by automated systems in an office or business enterprises, and may require a password to exit the premises, which is only available by access to the computer or computer network.
Another defense that is applicable for a defendant is consent. Consent involves a clear statement of affirmation made by one person to another, giving the green light to carry out an action. However, it is not uncommon for people to make false claims against a person with whom they had made an agreement with earlier. In the new age, persons may have selfish gains in a quest to get monetary gains or any other financial gratification by bringing forth a suit. The prosecutor’s case is primarily to disprove any defenses brought forth by creating reasonable doubt, which is how a case is established in their favor. However, your defense attorney from Virginia Criminal Attorney has the legal expertise to correctly prove all facts that lead to the indication of your innocence. This is done by rebutting claims made by the prosecution’s facts and bringing into light several key facts that may be underlooked by the prosecution.
In addition, the defense of necessity is available to the defendant, whereby a valid need to carry out the crime of computer trespass may be necessary. The defense may be divided into a public and private necessity. The defense of public necessity is applicable whereby a person who holds vital information that may be relevant or even dangerous to the general safety of the public is held within a computer or a computer network. Therefore, it becomes necessary to hack a computer or network in an effort to analyze the suspected information and therefore report the found information to the relevant authorities. Because of the nature of such an operation, it is easy to assume that the defendant. However, if he or she can rightfully prove that the information is true and valid, it will be admissible in court. Similarly, a case whereby important information of trafficked persons may be stored in a computer or computer network. Cases of trafficking have become rampant in the United States in general, with the inclusion of the state of Virginia. Hackers could need to break into the network and retrieve information such as names, images, and other important details of the trafficking victims. The operation may only be possible through computer trespass, because of the discretion practiced by the traffickers. Other dangerous operations may also warrant the same need for computer trespass.
A private necessity, on the other hand, involves a need to solve a personal emergency, which may only be possible by computer trespass. For instance, if someone has blocked you from any access to your own network or device, you may need to retrieve possession, which could be possible by computer trespass. A reasonable person often involves a professional hacker, who has legitimacy in his or her operations. Another common necessity is possible when a person in charge of a job operation is unavailable or unreachable and has delegated work that may require access to his or her computer or network. A junior member of staff in charge of the task may be compelled to trespass the restricted access of the senior’s network. The defense will seamlessly apply provided that the junior worker acts in a reasonable way and does not alter any other information maliciously. Your criminal defense attorney is tasked with the job of ensuring that the operation of computer trespass was rightfully done, with no malicious intent from the victim’s side, who, in this case, is the defendant. If the judge is moved by the evidence presented, the defense will definitely suffice.
Contact a Virginia Criminal Attorney Near Me
A case of computer trespass is often a misguided representation of facts in court, which is, in most cases, if not always to the detriment of the accused person. If you are facing criminal charges involving computer trespass, the offices of Virginia Criminal Attorney are happy to offer our legal services and advice to you, and we will establish possible solutions. We understand the claims and accusations surrounding the crime and are ready to help you bring out the strongest possible defenses. Contact us today at 703-718-5533.