Parnham & Associates
Criminal Law Attorneys in Houston, Texas
The internet has become integrated into the lives of private citizens, businesses, corporations, and government in this country: as a result, legal issues associated with the internet have grown substantially. Internet crimes may be prosecuted in state or federal courts, and include activity ranging from copyright infringement to solicitation of minors and child pornography.
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Cyber Crimes Legal Defense:
Recent media coverage has been rife with stories of large-scale data breaches, hacks and online financial crime. New trends in cyber crime are emerging all the time, with estimated costs to the global economy running to billions of dollars.
In the past, cyber crime was committed mainly by individuals or small groups. Today, we are seeing highly complex cyber criminal networks bring together individuals from across the globe in real time to commit crimes on an unprecedented scale. Criminal organizations turning increasingly to the Internet to facilitate their activities and maximize their profit in the shortest time. The crimes themselves are not necessarily new – such as theft, fraud, illegal gambling, sale of fake medicines – but they are evolving in line with the opportunities presented online and therefore becoming more widespread and damaging.
Texas State Cyber crimes Law:
Most states have enacted internet and computer crimes statutes: many of these statutes not only provide for criminal prosecution but also for civil liability. In Texas, cyber crime is defined by the Texas Computer Crimes Statute (Penal Code, Title 7, Chapter 33) to include:
- Knowingly accessing a computer, computer network or computer system without the consent of the owner;
- Knowingly soliciting a minor under the age of 17 over the internet, text message, or other electronic system, to meet in person for the purpose of engaging in sexual behavior with the defendant;
- Knowingly accessing a computer system, network, program, software or machine that is part of a voting system that uses direct recording electronic voting machines and tampers with the votes or the ability of someone to vote.
- Creating a web page or leaving messages on a social networking site using the persona of another without the person's consent and with the intent to harm, defraud, intimidate or threaten someone; or
- Referencing the name, domain address, phone number or any other identifying information of a person without that person's consent, intending to cause the recipient to think the message is truly coming from that person, with the intent to harm or defraud someone.
The penalties for computer crimes depend on the nature and seriousness of the crime committed:
For gaining access to a computer without the consent of the owner the penalty may range all the way from a "Class B" misdemeanor (up to 180 days in a county jail and/or a fine of up to $2,000) up to a first degree felony (five to 99 years in a state prison and/or a fine of up to $10,000). The factor influencing the degree of the penalty imposed is the value of money or property that the defendant benefitted from and/or was lost by the victim.
For soliciting a minor, the crime is charged as a third degree felony (two to ten years in state prison and/or a fine of up to $10,000). However, if the minor is under 14 years of age, then it may be a second degree felony (two to twenty years in a state prison and/or a fine of up to $10,000).
For tampering with a voting machine, the penalty is a first degree felony. This is a very serious penalty with a sentence between five to 99 years in a state prison and/or a fine of up to $10,000.
Online harassment is usually charged as a third degree felony; however, if the crime involves falsifying an electronic message with the intent to harm or defraud, the defendant may instead be charged with a "Class A" misdemeanor (not more than one year in a county jail and/or a fine of no more than $4,000). If the message was intended to summon a response by emergency personnel, it will be elevated to a third degree felony.
Federal Cyber crimes Laws:
In addition to state laws, the federal government has entire sections and task forces which are dedicated to computer crimes. Computer crimes are most often classified as federal offenses when they involve "crossed" state lines or actions which are unlawful under federal law.
In 1986, Congress passed the Computer Fraud and Abuse Act (CFAA) . This law has been amended and expanded as internet technology has advanced, and it continues to form the basis for federal prosecutions of computer-related criminal activities. Other relevant federal statutes include the Electronic Communications Privacy Act (ECPA), the Identity Theft Enforcement and Restitution Act of 2008 (ITERA), and certain provisions of the USA PATRIOT Act.
The federal computer fraud and abuse statute protects federal computers, bank computers, and computers used in interstate and foreign commerce. It shields them from trespassing, threats, damage, espionage, and from being corruptly used as instruments of fraud. It is not a comprehensive provision, but instead it fills crack and gaps in the protection afforded by other federal criminal laws. In general subsection 1030(a) criminalise:
• Computer trespassing (e.g., hacking) in a government computer, or on any computer if it results in exposure to certain governmental, credit, financial, or computer-housed information;
• Damaging a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce (e.g., a worm, computer virus, Trojan horse, time bomb, a denial of service at tack, and other forms of cyber attack, cyber crime, or cyber terrorism);
• Committing fraud, an integral part of which involves unauthorized access to a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce;
• Threatening to damage a government computer, a bank computer, or a computer used in or affecting interstate or foreign commerce;
• Trafficking in passwords for a government computer, or when the trafficking affects interstate or foreign commerce, and
• Accessing a computer to commit espionage.
In general, violations are punishable by imprisonment for not more than 10 years (not more than 20 years for second and subsequent offenses) and/or a fine of not more than $250,000 (not more than $500,000 for organizations). However, the general espionage sentencing guideline may also apply in some cases, which calls for a base sentencing level of 30 (carrying an initial sentencing range beginning at 8 years' imprisonment) and of 35 (an initial sentencing range beginning at 14 years) if top secret information is involved.
Further, if a violation is committed for terrorist purposes the minimum sentencing level is 32 and the criminal history category is VI which means the sentencing range begins at 17.5 years' imprisonment (and begins at 24.33 years' imprisonment if top secret information is involved).
Common Prosecutions for Cyber crime:
Some of the most common Cyber crimes include:
- Identity Theft (including aggravated ID Theft
- Internet sex crimes / child pornography
- Computer hacking or cracking
- Unauthorized access to a computer network
- Violations of the Computer Fraud and Abuse Act
- Computer trespass
- Criminal Internet copyright infringement
- Cyber stalking
- SPAM and the CAN-SPAM Act
Internet fraud generally refers to any use of the internet to conduct fraudulent transactions, transfer the proceeds of those transactions to financial entities, or to intentionally destroy data through viruses. With the advent of the internet age, individuals have developed new and interesting methods of defrauding others of goods and monies. These activities can be carried
• "Phishing" - Phishing is the attempt to acquire sensitive information such as user names, passwords, and credit card details by masquerading as a trustworthy entity in an electronic communication. Communications purporting to be from popular social web sites, banks, online payment processors or IT administrators are commonly used to lure unsuspecting victims. Phishing is typically carried out by email spoofing or instant messaging, and it often directs users to enter details at a fake website designed to be identical to the legitimate one.
Phishing is a continual threat, and the risk is even larger in social media such as Facebook, Twitter, and Google+. Hackers commonly take advantage of these sites to attack people, taking advantage of the trust that the user may have in them.
• Internet Sales Fraud - Websites like e-bay, Craigslist and many others allow individuals and companies to place items for sale. Usually the sellers are legitimate, but sometimes -especially with high dollar items such as automobiles or electronics- the advertisement may simply be a scam and the item may not exist at all. Inversely, an item may be shipped by a legitimate seller only to find that the payment is later withdrawn.
• Internet Credit Card Fraud - This involves phishing scams, keylogging "trojans" and database hacking. Credit card numbers can be retrieved in a number of ways and used online to buy merchandise: online transactions contains fewer safeguards than physical transactions in a store.
• Internet Investment Fraud - Online investment fraud generally involves people overseas or out of state who provide details for a business or investment and require you to wire a sum of money to them in advance. More elaborate schemes might have you eventually meet the person and see more things to convince you the investment is legitimate.
Those that are accused of Internet fraud may face very serious consequences, including felony charges with fines of up to $250,000 and up to 20 years in jail. Along with these charges there may be other "white collar" crime allegations, like wire and mail fraud and conspiracy charges. The problem with the laws in these areas is that very often the science involved is inexact. A lack of understanding of the inner workings of computers and the internet can cause law organizations to charge innocent individuals with very serious crimes, and criminals often use identity theft as a first line of defense resulting in innocent people being accused of their crimes.
Internet Sex Crimes:
Internet sex crimes such as possession of child pornography or online solicitation make media headlines, especially when business owners, teachers, or other prominent citizens are facing these accusations. Using the internet to solicit sexual acts from a minor is an incredibly serious offense. Any sex crime charge, even if false, can be extremely damaging. That's why it's important to seek immediate and aggressive legal representation.
Some pornography web sites install software on your computer or come looking for you without your knowledge, and can then send you to another web site containing potentially illegal content. In addition police officers often pose as minors and seek to entrap visitors to Internet chat rooms. In many of these situations, there are several legal means by which to challenge the legality of the entrapment process.
"Sexting" is the transmission of nude images or suggestive material via text messages. Such transmission typically occurs via smart phones, computers, etc.; it is a growing trend primarily amongst teenagers who send personal images in connection with dating or flirting. The main concern is that if the person sending or receiving the message is under the legal age of adulthood, they may still be convicted of possession or distribution of child pornography (especially if the photograph depicts a minor). Sexting is a relatively recent development, so the laws governing it are sometimes still in development and may vary from state to state; there is a growing legislative movement to do away with felony charges for sexting. Teens engaging in consensual sexting would only receive misdemeanor charges. Many states are now implementing these changes. However, felony charges may remain in place for adults who engage in sexting with minors, and for teens who engage in sexting without the other person's consent.
Identity theft is a broad category of crime which runs the gamut from mere possession of someone else's identifying information without their permission to the use of someone else's identity to obtain a loan or credit cards, lease automobiles, purchase goods or services, or to commit a separate crime. This is considered to be a very serious crime, and often comes with other charges such as conspiracy, mail fraud, wire fraud, bank fraud or other charges.
Laws are often constructed in such a way that someone can be convicted of a felony identity theft crime even if the victim suffers no financial harm. Organizers of major identity theft schemes often keep other participants in the dark about the extent of the enterprise. Sometimes people are wrongly accused of identity theft altogether due to "guilt by association".
There are also many instances where one's involvement in identity theft is the result of underlying substance abuse or other mental health issues. In these cases, we work with clients in developing a program of treatment. A client's commitment to treating these underlying issues is often helpful in mitigating the harsh punishments sought in identity theft cases.
Programs such as Bit Torrent are used to transfer large data files from one computer to another over large networked servers called trackers. Because no one keeps records of the files sent and received by trackers, there is huge potential for copyright infringement. Under the strict rules of law it is legal to possess a torrent program, but not to use it for illegal file sharing.
The Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to sell devices that enable the violation of copyright laws, and provided legal harbor for Internet service providers who comply with certain guidelines to escape penalties for users who violate copyright laws. In addition, the Family Entertainment and Copyright Act of 2005 criminalised filming movies in a theater and early release movies, music and software before they are made available to the public. The act also protects movie theater personnel from civil and criminal charges while questioning or detaining suspects of piracy while police are summoned.
Unfortunately, people do not always understand copyright law and may inadvertently infringe upon others' proprietary rights. For the government to bring charges of Internet copyright infringement, it must prove "willfulness", i.e., that you deliberately copied the files with the intent of using them yourself or sharing them with other users without paying for them.
The government must also prove that the illegal music download and sharing occurred on your personal computer. If there is more than one person in your household, it is difficult for the government to prove that it could only have been you personally. Someone else in your home may have surfed the Internet and downloaded or uploaded the files in violation of Internet copyright laws.
Computer Hacking refers to the act of gaining unauthorized access to computer systems for the purpose of stealing, altering or corrupting data. Because the FCC holds jurisdiction over the Internet a defendant is subject to Federal Prosecution. The most common penalty associated with hacking crimes is restitution in order to compensate those who suffered financial loss due to the hacking and the considerable financial damage that can result from computer hacking. The penalty range can be quite substantial: up to five years in prison and $250,000 in fines or more depending on the circumstances.
Computer Hacking charges of all types are prosecuted fiercely by our government. Sentencing tends to be quite severe in these types of crimes, and many of these charges are made in federal courts. There are a great number of sting operations conducted by the FBI intended to round up as many cyber crime charges as possible.
Defenses to Computer Crimes Charges:
There are a number of possible opportunities in preparing a legal defense against computer crimes charges. Statutes of limitations may prohibit prosecution for many—but not all—computer crimes if more than 5 years have passed since any alleged criminal act occurred. Additionally, because government agents usually either physically search a defendant's computers or electronically access their files, the legality of those searches may be brought into question. Information illegally obtained by government agents without a warrant or consent will often be suppressed if a defense attorney is able to prove that the defendant's rights were violated. In many computer crime "sting" investigations, federal agents have been known to urge or solicit individuals to commit computer crimes, and this kind of influence by law enforcement may constitute entrapment. If a defense attorney can prove that a defendant would not have committed a crime if not for the urging of law enforcement, a jury may find that the defendant was entrapped, and no conviction or is then possible. An attorney experienced in computer crime defense will be able to sort through the complex evidence these cases often involve, determining how best to challenge the government and protect your rights.
Possible defenses against charges of cyber crime may include, but are not limited to:
• Lack of knowledge of the victim's age (i.e. the person solicited over the internet misrepresented themselves as being over the age of 17)
For soliciting a minor, it is a defense that the defendant was married to the minor at the time of the solicitation, or that the defendant was no more than three years older than the minor at the time of the solicitation and the minor consented.
• Evidence that consent was given
• For breaching computer security, it is a defense that the defendant was an employee of a communications common carrier or electric utility and engaged in the conduct during his employment to ensure that the integrity of the property and protection of the rights were maintained. (e.g. a computer technician that must access your computer system in order to fix a problem)
• For online harassment, it is a defense that the defendant's action consisted only of action taken as an employee of a social networking site, internet service provider, interactive computer service, telecommunications provider or video/cable service provider.
If you have been charged with an internet based cyber crime you need an experienced criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.
Our attorneys are intimately familiar with all facets of criminal defense and may help clients with the following:
- Work to get the charges dropped or lowered
- Interview police, involved parties, and any possible witnesses to expose any lies or exaggerations
- Make sure that no evidence against our client was obtained illegally
- Conduct a thorough pre-trial investigation
- Employ a private investigator, ballistics expert, polygraphist, or any other experts that may be able to help strengthen our client's defense
- Obtain expert witnesses to testify on behalf of our clients
- Negotiate with prosecutors to make sure our clients face the minimum possible penalties
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The Law Office of Parnham & Associates
440 Louisiana St., Suite 200 (The Lyric Centre), Houston, TX 77002
Phone: (713) 224.3967 | Fax: 713.224.2815
This is for general informational purpose only. This information: • DOES NOT represent a legal advice or opinion, • DOES NOT create an attorney-client relationship, • DOES NOT account for community-supervision eligibility, special punishment issues, mandatory minimum confinement, enhancements, and "Exceptional Sentences" under Chapter 12 Subchapter D of the Texas Penal Code, • DOES NOT apply Corporations & Associations. • DOES NOT represent the unique circumstances of your case.