Cyber Crimes, Computer Crimes, Internet Arrests: Texas Criminal Defense Overview
Posted on by Michael Lowe.
Crimes involving computer use and accessing the internet can involve all sorts of criminal activity, but they come with their own separate criminal charges and punishments.
The aspects of cybercrime defense are widespread because of the range of activity underlying the internet usage made the basis of the charges. From money laundering or child pornography to identity theft and fraud, employing the use of software and accessing the web creates a new level of criminal charges focused solely upon the web activity itself.
Things happen rapidly in this area of criminal defense. First, there are the almost daily technological advancements that must be monitored, especially since criminal enterprises are often among the first to understand and implement new developments. Secondly, there must be an understanding of how computer technology and the internet work together as a means of communication today. The defense lawyer needs to know how things jive with the client’s activities, as well as how they intertwine with the government’s investigation and its corresponding legal parameters.
Today’s internet access allows speed and anonymity. It is no wonder that internet crimes exist and evolve. All sorts of illegal activities invite themselves to the web, from sex crime activity like online solicitation and child pornography to accessing financial information for fraud, or actual theft from online banking accounts. There’s even the “Dark Web,” which is a segment of the internet notorious for illegal activity. See, “Hacker Lexicon: What Is the Dark Web?” written by Andy Greenberg and published by Wired on November 19, 2014.
Usually, the Texas criminal defense lawyer will face prosecutors seeking serious sentencing based upon several overlapping felonies. These are often major cases. And in Texas, arrests based upon illegal computer use can be based upon violations of either federal or state laws defining cybercrimes, computer crimes, and internet crimes.
What is a Cyber Crime?
Essentially, computers are tools. When criminal activity incorporates these tools, “cybercrimes” may be added to other criminal charges. How does this work? According to the Bureau of Justice Statistics (BJS), “cyber crime” involves three general activities:
- “Cyber attacks” target a computer system and include things like creating and spreading computer viruses, denial of service (DOS)attacks, vandalism, and sabotage;
- “Cyber thefts” access a computer system to steal things and includes embezzlement, fraud, theft of intellectual property, and theft of personal or financial data; or
- “Cyber security incidents” involve the creation of use of spyware, adware, hacking, phishing, spoofing, pinging, port scanning, and theft of other information to breach a computer’s system.
Cybercrimes can also involve the transmission or storage of illegal data, including pornographic images of minors.
Federal Cybercrime Statutes
The following federal laws can form the basis of an arrest by federal law enforcement for illegal computer activity or cybercrimes:
1. Computer Fraud and Abuse Act
Passed in 1986, the Computer Fraud and Abuse Act (18 USC §1030) boosted existing mail fraud and wire fraud statutes to provide specifically for actions involving unauthorized use of a computer. Among its provisions are the following defined federal crimes:
- Obtaining National Security Information, 18 USC § 1030(a)(1)
- Accessing a Computer and Obtaining Information, 18 USC § 1030(a)(2)
- Trespassing in a Government Computer, 18 USC § 1030(a)(3)
- Accessing to Defraud and Obtain Value, 18 USC § 1030(a)(4)
- Damaging a Computer or Information, 18 USC § 1030(a)(5)
- Trafficking in Passwords, 18 USC § 1030(a)(6)
- Threatening to Damage a Computer, 18 USC § 1030(a)(7)
- Attempt and Conspiracy, 18 USC § 1030(b)
- Forfeiture, 18 USC § 1030(i), (j)
2. Federal Wiretap Act
The federal Wiretap Act (119 USC §2510) focuses on invasions of privacy via the internet, and includes any action which intentionally or purposefully intercepts, discloses, or uses the contents of any wire, oral, or electronic communication through the use of a “device”:
- Intercepting a Communication, 119 USC § 2511(1)(a);
- Disclosing an Intercepted Communication, 119 USC § 2511(1)(c); and
- Using an Intercepted Communication, 119 USC § 2511(1)(d).
3. Other Federal Computer Crime Laws
There are several other federal laws that have been passed to define crimes involving the internet, many involving serious felonies and correspondingly severe prison time upon conviction and sentencing, such as:
- Unlawful Access to Stored Communications, 18 U.S.C. §2701
- Identity Theft and Aggravated Identity Theft, 18 USC §§1028(a)(7); 1028A
- Access Device Fraud, 18 USC §1029
- CAN-SPAM Act, 18 USC §1037
- Wire Fraud, 18 USC §1343
- Communication Interference, 18 USC §1362.
Texas Internet Crime Laws
Independently of any federal prosecutions, an individual can face serious criminal charges based upon Texas cybercrime laws. These include the following:
1. Computer Crimes under Chapter 33 of the Texas Penal Code
The Texas Legislature has defined a series of “computer crimes” in Chapter 33 of the Texas Penal Code, which include:
- Breach of Computer Security ( Sec. 33.02);
- Online Solicitation of a Minor (Sec. 33.021);
- Electronic Data Tampering (Sec. 33.023);
- Unlawful Decryption (Sec. 33.024);
- Online Impersonation ( Sec. 33.07); and
- Telecommunication Crimes (Chapter 33A).
2. Internet Crimes Defined in Chapter 16 of the Texas Penal Code
In another chapter of the state criminal code, Chapter 16 of the Texas Penal Code, comes a series of crimes involving use of the internet itself, including:
- Unlawful Use of Criminal Instrument or Mechanical Security Device (Sec. 16.01);
- Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications (Sec. 16.02);
- Unlawful Access to Stored Communications (Sec. 16.04);
- Illegal Divulgence of Public Communications (Sec. 16.05); and
- Unlawful Installation of Tracking Device (Sec. 16.06).
Overlapping Defense in Computer Crimes and Cybercrime Charges
From a criminal defense perspective, arrests involving computer crimes and internet charges usually tag along with serious felony charges involving things like:
- Child pornography
- Solicitation of a minor.
Overlapping state or federal sex crimes with illegal usage or access of the internet are particularly commonplace as usage of the internet for pornography and prostitution is so widespread. For more, read:
- New Texas Sex Crimes: The Online Prostitution Laws Effective September 1, 2019
- Photographs as Sex Crimes: Changes to the Texas Revenge Porn Law (Texas Penal Code §21.16)
- Online Impersonation: Catfishing is Illegal in Texas
- Child Pornography: Defending Against Overreaching Investigations Using the Internet
- Federal Child Pornography Charges Often Involve Federal Surveillance of Online Communications, Personal Email Records, Stored Computer Files
- Expect More People to Face Child Pornography Charges as Online Investigation into EMail and Search Queries Expand in 2014.
Accordingly, any criminal defense with computer crime charges is immediately more complex and serious. The defense must fight against the factual and legal bases of the underlying activity (solicitation, for instance) while simultaneously dealing with the independent computer issues (for example, investigating how the search and seizure was performed on the accused’s computer drives).
Another core consideration is which jurisdiction is involved. Under federal law, the Computer Fraud and Abuse Act (18 USC §1030) has been expanded over the years so that federal prosecutors have the ability to charge for its violation whenever the government asserts someone has intentionally accessed a computer without authorization, while failing to define exactly what “…without authorization” means under the law.
As the NACDL warns, this law has “…become a tool ripe for abuse and use against nearly every aspect of computer activity… and [t]he breadth and ambiguity of the CFAA are deeply troubling.”
Privacy Issues and Computer Crime Charges
Of course, law enforcement investigations of criminal activity must be undertaken in order for cases to be built and arrests to be made. When computer crimes are involved, this means an increasing amount of silent, unseen online government surveillance.
Search and seizure of a car, house, or person involves activities that are different from the search and seizure of computer information. Privacy issues, and illegal invasion of a person’s constitutional right to privacy, are ever-growing concerns for the criminal defense attorney in an internet crime case.
For one thing, today’s smartphones are essentially small computers with large amounts of storage. Targeting phones during surveillance and subsequent searches is routine for police these days. See:
- Privacy of Your Smart Phone: Police Search and Seizure and Apple’s Fight Against the FBI
- The Police and Your Phone: Invasion of Privacy by Police
All too often, the defense scrutiny into the government’s cybercrime case will discover law enforcement has performed an illegal search and seizure, often hacking into hard drives or phones without the legally mandated search warrant and its corresponding probable cause protections.
The search warrant for the computer information must be carefully considered under the law to make sure that there is a sufficient nexus between the criminal activity, the thing to be seized, and the place to be searched. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013).
An objection must be made by the defense lawyer based upon a Fourth Amendment challenge. If the trial court thereafter admits the computer evidence, there is constitutional error and the case must be reversed. Taunton v. State, 465 S.W.3d 816, 824 (Tex. App.-Texarkana 2015, pet. ref’d).
For more, read:
- FBI Investigations and DOJ Prosecutions: Fighting for Your Privacy Rights
- FBI’s New Global Hacking Rule: Amended Federal Rule 41 Danger to Your Privacy
Criminal Defense of Federal or State Computer Crime Charges
Computer crime charges involve a multitude of circumstances. Anyone accused of violating a state or federal cybercrime law needs a vigorous and experienced criminal defense because things are often misconstrued, legally and/or factually in these cases.
These cases are unique. They are complicated. And often, the police and prosecutors are fixated on getting an arrest or indictment without dotting their Is and crossing their Ts.
There may be occasions when the accused is in reality a victim, for example. Hackers are able to access a third party’s information and thereafter covertly commit any number of crimes. The hacker may steal credit card information and buy things (or sell that information). The hacker might purchase illegal items, including child pornography using hacked tablets, phones, or desktop computers. Just having your IP address (which is shockingly easy to find via your WiFi) may be more than enough for a hacker many, many miles away to set up his or her victim for arrest weeks or months down the road.
Here, the defense lawyer must understand the nuances of computer-based crimes. Investigations must consider if hacking has occurred. If so, this is strong evidence to present to the prosecution for dismissal of the charges against the hacking victim.
Another cybercrime defense complication can involve misinterpretation of the circumstances. For instance, someone may be accused and arrested for online solicitation of a minor. The computer evidence supports that there was an attempt to solicit sexual activity. However, the defense must then consider whether or not there has been any factual support for the accused having any knowledge that the person was not a legal adult.
Legally, does the computer data show that the accused knew that the person was a minor? If so, is there any computer evidence supporting a continued attempt to solicit after knowledge that the person was underage? If the answer to either of these questions is no, then the defense can show a failure of the prosecution to establish the key element of “mens rea” – and again, push for dismissal of the charges.
Evolving Defense in Rapidly Changing Industry
Computer advancements mean that legislators are constantly trying to keep up with the industry advances. Cyber technology is changing all the time and sophisticated criminal activities are changing with it – usually much faster than the lawmakers can keep up.
Both state and federal laws must be monitored with each legislative session to learn what new bills are being considered as well as when new laws are being passed, and when they will become effective.
Today’s criminal defense lawyer works within a set of criminal laws that will not be the same five years from now. Both state and federal laws will change, both in defining cybercrimes as well as in establishing their range of punishments.
Most cybercrimes will be prosecuted as felonies here in Texas. Felony convictions under either state or federal law can come with significant prison time. When sex crimes are involved, the result can be someone forever stigmatized as a sex offender (unless the defense can thwart this result).
Having a skilled cybercrime defense strategy is vital for anyone accused of an internet crime under either Texas law or federal statute. The faster that a defense plan can be prepared and implemented, the better.
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