Hi, this is Michael Pariente from Pariente Law Firm, P.C. here at the Howard Hughes Center in my conference room. I’m a criminal defense attorney here in Las Vegas. I’ve practiced law for the past 17 years.

Today, I’d like to talk to you about prosecution for Computer Fraud and Abuse Act under 18 U.S. Code § 1030. I want to discuss one of the many narrow aspects of defense used against these types of prosecutions.

 

Cornell defines 18 U.S. Code § 1030 as:

“(a) Whoever—
(1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—“
https://www.law.cornell.edu/uscode/text/18/1030

Often, you’ll see someone prosecuted who works for a company and goes into the computer network and destroys a file or intellectual property. In that case, the person who has access to the computer is authorized. Some prosecutors have alleged that the moment the accused breached the “duty of company loyalty” and the employee does something that is counter to the goals of the corporation, they have “exceeded authorized access”. However, that is actually not the situation.

There is a lot of case law that indicates otherwise. If you have access, limited access, or have permissions set high enough to destroy a file, that’s not prosecutable under this section. We’re going to talk over the next couple of weeks about different aspects of prosecutions under 18 U.S. Code § 1030 and will discuss different defenses.

If you’re being investigated or prosecuted criminally for violating the Computer Fraud and Abuse Act of 1986, contact my office as soon as possible. The penalties for this crime are more severe than some folks realize. I’m more than happy to meet with you in person, or if you’re calling from out-of-state, let’s talk about what I can do to help you.

 


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