Tag Archives: Criminal defense

Texas Computer Crimes

Texas Computer Crime Laws

TITLE 7. OFFENSES AGAINST PROPERTY

CHAPTER 33. COMPUTER CRIMES

Sec. 33.01.  DEFINITIONS.  In this chapter:

(1)  “Access” means to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.

(2)  “Aggregate amount” means the amount of:

(A)  any direct or indirect loss incurred by a victim, including the value of money, property, or service stolen or rendered unrecoverable by the offense; or

(B)  any expenditure required by the victim to verify that a computer, computer network, computer program, or computer system was not altered, acquired, damaged, deleted, or disrupted by the offense.

(3)  “Communications common carrier” means a person who owns or operates a telephone system in this state that includes equipment or facilities for the conveyance, transmission, or reception of communications and who receives compensation from persons who use that system.

(4)  “Computer” means 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.

(5)  “Computer network” means the interconnection of two or more computers or computer systems by satellite, microwave, line, or other communication medium with the capability to transmit information among the computers.

(6)  “Computer program” means an ordered set of data representing coded instructions or statements that when executed by a computer cause the computer to process data or perform specific functions.

(7)  “Computer services” means the product of the use of a computer, the information stored in the computer, or the personnel supporting the computer, including computer time, data processing, and storage functions.

(8)  “Computer system” means any combination of a computer or computer network with the documentation, computer software, or physical facilities supporting the computer or computer network.

(9)  “Computer software” means a set of computer programs, procedures, and associated documentation related to the operation of a computer, computer system, or computer network.

(10)  “Computer virus” means an unwanted computer program or other set of instructions inserted into a computer’s memory, operating system, or program that is specifically constructed with the ability to replicate itself or to affect the other programs or files in the computer by attaching a copy of the unwanted program or other set of instructions to one or more computer programs or files.

(11)  “Data” means a representation of information, knowledge, facts, concepts, or instructions that is being prepared or has been prepared in a formalized manner and is intended to be stored or processed, is being stored or processed, or has been stored or processed in a computer. Data may be embodied in any form, including but not limited to computer printouts, magnetic storage media, laser storage media, and punchcards, or may be stored internally in the memory of the computer.

(12)  “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A)  induced by deception, as defined by Section 31.01, or induced by coercion;

(B)  given by a person the actor knows is not legally authorized to act for the owner;

(C)  given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

(D)  given solely to detect the commission of an offense; or

(E)  used for a purpose other than that for which the consent was given.

(13)  “Electric utility” has the meaning assigned by Section 31.002, Utilities Code.

(14)  “Harm” includes partial or total alteration, damage, or erasure of stored data, interruption of computer services, introduction of a computer virus, or any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.

(15)  “Owner” means a person who:

(A)  has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;

(B)  has the right to restrict access to the property; or

(C)  is the licensee of data or computer software.

(16)  “Property” means:

(A)  tangible or intangible personal property including a computer, computer system, computer network, computer software, or data; or

(B)  the use of a computer, computer system, computer network, computer software, or data.

Added by Acts 1985, 69th Leg., ch. 600, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 306, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 306, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 18.44, eff. Sept. 1, 1999.

Sec. 33.02.  BREACH OF COMPUTER SECURITY.  (a)  A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

(b)  An offense under this section is a Class B misdemeanor unless in committing the offense the actor knowingly obtains a benefit, defrauds or harms another, or alters, damages, or deletes property, in which event the offense is:

(1)  a Class A misdemeanor if the aggregate amount involved is less than $1,500;

(2)  a state jail felony if:

(A)  the aggregate amount involved is $1,500 or more but less than $20,000; or

(B)  the aggregate amount involved is less than $1,500 and the defendant has been previously convicted two or more times of an offense under this chapter;

(3)  a felony of the third degree if the aggregate amount involved is $20,000 or more but less than $100,000;

(4)  a felony of the second degree if the aggregate amount involved is $100,000 or more but less than $200,000; or

(5)  a felony of the first degree if the aggregate amount involved is $200,000 or more.

(c)  When benefits are obtained, a victim is defrauded or harmed, or property is altered, damaged, or deleted in violation of this section, whether or not in a single incident, the conduct may be considered as one offense and the value of the benefits obtained and of the losses incurred because of the fraud, harm, or alteration, damage, or deletion of property may be aggregated in determining the grade of the offense.

(d)  A person who his subject to prosecution under this section and any other section of this code may be prosecuted under either or both sections.

Added by Acts 1985, 69th Leg., ch. 600, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 306, Sec. 2, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 306, Sec. 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1411, Sec. 1, eff. Sept. 1, 2001.

Sec. 33.021.  ONLINE SOLICITATION OF A MINOR.  (a)  In this section:

(1)  “Minor” means:

(A)  an individual who represents himself or herself to be younger than 17 years of age; or

(B)  an individual whom the actor believes to be younger than 17 years of age.

(2)  “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3)  “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b)  A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1)  communicates in a sexually explicit manner with a minor;  or

(2)  distributes sexually explicit material to a minor.

(c)  A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d)  It is not a defense to prosecution under Subsection (c) that:

(1)  the meeting did not occur;

(2)  the actor did not intend for the meeting to occur; or

(3)  the actor was engaged in a fantasy at the time of commission of the offense.

(e)  It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1)  the actor was married to the minor; or

(2)  the actor was not more than three years older than the minor and the minor consented to the conduct.

(f)  An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense.  An offense under Subsection (c) is a felony of the second degree.

(g)  If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

Added by Acts 2005, 79th Leg., Ch. 1273, Sec. 1, eff. June 18, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 610, Sec. 2, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1291, Sec. 7, eff. September 1, 2007.

Sec. 33.03.  DEFENSES.  It is an affirmative defense to prosecution under Section 33.02 that the actor was an officer, employee, or agent of a communications common carrier or electric utility and committed the proscribed act or acts in the course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the communications common carrier or electric utility.

Added by Acts 1985, 69th Leg., ch. 600, Sec. 1, eff. Sept. 1, 1985. Renumbered from Penal Code Sec. 33.04 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 33.04.  ASSISTANCE BY ATTORNEY GENERAL.  The attorney general, if requested to do so by a prosecuting attorney, may assist the prosecuting attorney in the investigation or prosecution of an offense under this chapter or of any other offense involving the use of a computer.

Added by Acts 1985, 69th Leg., ch. 600, Sec. 1, eff. Sept. 1, 1985. Renumbered from Penal Code Sec. 33.05 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 33.05.  TAMPERING WITH DIRECT RECORDING ELECTRONIC VOTING MACHINE.  (a)  In this section:

(1)  “Direct recording electronic voting machine” has the meaning assigned by Section 121.003, Election Code.

(2)  “Measure” has the meaning assigned by Section 1.005, Election Code.

(b)  A person commits an offense if the person knowingly accesses a computer, computer network, computer program, computer software, or computer system that is a part of a voting system that uses direct recording electronic voting machines and by means of that access:

(1)  prevents a person from lawfully casting a vote;

(2)  changes a lawfully cast vote;

(3)  prevents a lawfully cast vote from being counted; or

(4)  causes a vote that was not lawfully cast to be counted.

(c)  An offense under this section does not require that the votes as affected by the person’s actions described by Subsection (b) actually be the votes used in the official determination of the outcome of the election.

(d)  An offense under this section is a felony of the first degree.

(e)  Notwithstanding Section 15.01(d), an offense under Section 15.01(a) is a felony of the third degree if the offense the actor intends to commit is an offense under this section.

(f)  With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to investigate or prosecute an offense under this section.

Added by Acts 2005, 79th Leg., Ch. 470, Sec. 1, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 503, Sec. 1, eff. September 1, 2009.

Sec. 33.07.  ONLINE HARASSMENT.  (a)  A person commits an offense if the person uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site:

(1)  without obtaining the other person’s consent; and

(2)  with the intent to harm, defraud, intimidate, or threaten any person.

(b)  A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1)  without obtaining the other person’s consent;

(2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3)  with the intent to harm or defraud any person.

(c)  An offense under Subsection (a) is a felony of the third degree.  An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

(d)  If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

(e)  It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:

(1)  a commercial social networking site;

(2)  an Internet service provider;

(3)  an interactive computer service, as defined by 47 U.S.C. Section 230;

(4)  a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

(f)  In this section:

(1)  “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users.  The term does not include an electronic mail program or a message board program.

(2)  “Identifying information” has the meaning assigned by Section 32.51.

Added by Acts 2009, 81st Leg., R.S., Ch. 911, Sec. 1, eff. September 1, 2009.

Internet Trial Attorney

An Internet Law pioneer with a proven record, Domingo J. Rivera was the first attorney in the United States to win a complex jury trial involving Federal Copyright Infringement, music piracy criminal allegations.

The importance of having a computer expert as your Internet trial attorney

During a cyber trial, whether related to copyright infringement, trademark infringement, domain name dispute, Internet defamation, or a computer crime trial, it is extremely important to have an attorney who has not only legal subject matter knowledge, but is also experienced in computer technology and the technical concepts related to the Internet.  We recently completed a long and complex cyber crime trial. We were fully equipped to expertly handle the criminal defense aspects of the case, we knew the law, how to cross-examine witnesses, and how to establish reasonable doubt. However, during the trial, it was our technical knowledge that allowed us to provide a unique perspective to the evidence presented.

The evidence presented at trial contained technical details that only an attorney with Internet technology knowledge would have recognized.  Your Internet lawyer must not only be effective in arguing Internet law, but must have superior technical knowledge to recognize complex technical issues “on the spot.”

It takes a lot of finesse, patience, and competence to explain to effectively explain technical issues to the court. The typical non-technical attorney attempting to venture into Internet law may not understanding these technical concepts.  Our expertise includes technical degrees in Computer Engineering and years of Internet technology experience.

Contact an Internet lawyer

Cease and Desist Letter

Cease and Desist Notice

You may need an Internet lawyer to assist you with the preparation of a cease and desist letter when your business is the victim of Internet copyright infringement, Internet trademark infringement, Internet defamation, domain name legal issues, or other Internet law issues.

Your Internet business may need an effective cease and desist letter to prevent your competitors from copying the contents of your website in order to take advantage of the success of your online business…. or you may have received an Internet copyright infringement cease and desist notice from an Internet copyright infringement lawyer or Internet trademark infringement lawyer asking you for a significant amount of monetary damages. In addition the copyright infringement cease and desist notice written may contain threats indicating that your company will be the target of a copyright infringement lawsuit, and an injunction against Internet copyright infringement.  Our Internet lawyers can provide assistance in drafting an effective cease and desist notice or responding to a cease and desist notice.

Effective handling of the cease and desist letter may determine whether or not expensive court litigation will be necessary to resolve the legal dispute.

Contact an Internet Lawyer

Domingo Rivera

Domingo J. Rivera, Esq., JD, M.S., MBA, CISSP, GPEN, CEH, GSLC, GCIH, EIT

Legal Decision Highlights:

  • The first attorney in the United States to obtain a major victory after a jury trial against the FBI and the DOJ in an case involving criminal copyright infringement allegations.  The client was accused of being the leader of the world’s most prolific music piracy group.  The case began in the United States District Court for the Eastern District of Virginia and was decided in the USDC for the Southern District of Texas.
  • Has obtained Summary Judgment in Federal cases involving computer trespass including the first civil case based on the Computer Fraud and Abuse Act and the Stored Communications Act decided by the Arkansas Federal Court.
  • Has obtained Summary Judgment in Federal cases involving online defamation, trademark infringement, invasion of privacy.  Obtained recent Summary Judgment involving online defamation and trademark infringement in the USDC for the Middle District of Florida.
  • Has won cases involving Internet defamation in several State and Federal Court cases after hotly contested trials.
  • Has obtained injunctions against Internet defamation.  Injunctive relief is generally hard to obtain in Internet defamation cases because of Free Speech implications.
  • Regularly teaches CLEs to other attorneys on Internet law matters.
  • Has published scholarly articles in widely published legal publications regarding issues related to Internet law and Internet defamation.
  • Is one of the few attorneys holding Information Security Certifications, including the prestigious CISSP, GPEN, GCIH, GSLC, CEH.  Of those, is also one of the select few with vast experience defending highly sensitive computer networks.

Education Highlights:

Domingo J. Rivera earned a B.S. in Computer Engineering, M.S. in Information Technology (Virginia Tech), an MBA (Florida) with a specialty in Information Technology Management, and a Doctorate of Jurisprudence.  Domingo J. Rivera is also a registered Electrical Engineering E.I.T. in the State of Florida.

Information Technology and Cybersecurity Certifications:

Domingo Rivera has passed the Certified Information Systems Security Professional (CISSP) exam.  Additionally, he holds the following Cybersecurity Certifications:

RiveraAVMCerts2

With these cybersecurity certifications and experience in defending critical computer networks, you can count on Mr. Rivera to apply both legal and technical expertise to any technically complicated case. Whether the case may involve hacking (unauthorized access to computer systems), online defamation investigation, or legal compliance issues related cybersecurity policy, we can provide techno-legal expertise to any case related to technology.

Clearance:

Mr. Rivera maintains a TS/SCI Clearance.  Therefore, he may assist you with sensitive legal issues that may require meeting at a secure facility or understanding the full scope of the situation.  His legal counsel has proven valuable to clients in need of competent and fully informed advice for sensitive matters.

Commercial Email SPAM

Commercial Email, SPAM, and the CAN-SPAM Act

Our Internet Lawyers frequently handle matters related to Internet Spam Laws and the CAN-SPAM Act. We frequently encounter this scenario: A business is interested in sending legally compliant commercial email. Or perhaps, a business’ servers are working at a snail’s pace and your IT staff is working overtime to control the bombardment of unsolicited bulk emails.

It is very important to seek the assistance of an attorney who understands the legal implications and ramifications of spam laws, the most important of which is that CAN-SPAM Act.

The CAN-SPAM Act is codified under 15 U.S.C. § 7701-7713. Contrary to the belief of many, the CAN-SPAM Act does not prohibit sending spam emails. Instead, it imposes certain requirements. These mandatory requirements include the use of accurate email subject lines and transmission information, opt-out procedures where recipients can elect not to receive additional emails from the sender, mandatory time frames for the removal of users who elect to opt-out, and a prohibition of improper email harvesting.

But, what happens when a sender complies with all the requirements of CAN-SPAM? Can an ISP still refuse to deliver compliant email messages to the intended recipients?

Non-compliance with CAN-SPAM will probably result in criminal prosecution under SPAM laws and other cyber crime laws, but compliance does not guarantee that an overzealous ISP will deliver the legally compliant emails to its intended recipients.

Our attorneys understand Spam Laws and the CAN-SPAM Act. If you or your business needs the advice of a spam attorney, we are ready to assist you.  We frequently advise businesses to structure their commercial email campaign in a manner that adequately manages business risk and limits business liability.  We frequently deal with all civil and criminal aspects of commercial bulk email, for example:

  • A business requests the services of an Internet lawyer with CAN-SPAM compliance understanding to make sure that its commercial email campaign is properly implemented.
  • An individual receives a cease and desist letter from an attorney accusing him of sending illegal spam emails and demanding a large amount of monetary damages.  The cease and desist letter also threatens civil and criminal prosecution.  A commercial email spam defense lawyer evaluates the situation and responds to the baseless allegations of sending illegal commercial email.
  • An individual faces criminal charges alleging that he sent thousands of spam email in violation of state and federal law.  A spam email defense attorney analyzes the electronic evidence and forensic records to build an effective defense.

Contact Us For a Free Internet Law Consultation