Intent

Intent

Most computer crime statutes require some degree of intent to establish computer crime. California, for example, defines computer crime to be the intentional access of a computer system "for the purpose" of a scheme or artifice to defraud or obtain money "with false or fraudulent intent."FN97 It also defines computer crime as the "intentional" alteration of a computer system "without authorization."FN98

Other states use similar words indicating required intent. Colorado and Illinois use the word "knowingly";FN99 Florida uses the words "willfully," "knowingly," or "without authority";FN1 New Mexico uses "knowingly and willfully ACCESSES or causes to be accessed any computer, computer system, computer network or any part thereof with the intent to obtain, by means of embezzlement or false or fraudulent pretenses, representations or promises, money, property or anything of value;FN2 and North Carolina uses the phrase "to instruct, communicate with, cause input, cause output, cause data processing, or otherwise make use of any resources of a computer, computer system, or computer network."FN3

In each of these situations, it can be argued that if the defendant did the prohibited act, he or she lacked the requisite intent that constitutes the crime. Frequent arguments for lack of necessary intent include lack of understanding about the effect on the computer caused by the defendant, lack of intent to gain, and belief in authorization.

Often when a company has no clear policy about use of computer time, the defendant can argue that he or she believed that the company permitted the use that is now considered prosecutable.FN4

Computer users charged with "hacking," or unauthorized access to computer systems, have argued in defense that they attempted access to computer systems not knowing what systems they might get into.FN5

Some computer crime statutes require "malicious" access to a computer system for there to be a crime.FN6 Malice means the absence of all elements of justification, excuse, or recognized mitigation and the presence of either an actual intent to cause the particular harm which is produced, or harm of the same general nature, or the wanton and willful doing of an act with the knowledge of circumstances indicating awareness of a plain and strong likelihood that such harm may result. Where it can be shown that there was no such intent, a defense is possible.

The computer crime laws are intent statutes, therefore, situations in which the defendant is suffering from diminished capacity or insanity may be a defense in some jurisdictions.FN7

Cumulative Supplement

Cases:

Fact that undercover agent posing as a minor on the internet was an adult did not render improvident accused's guilty plea to using a means of interstate commerce to attempt to entice a child under 18 years of age to engage in sexual activity which was based on accused's instant message communications with undercover agent over the internet, as the statute requires only "an intent to persuade or to attempt to persuade." 18 U.S.C.A. § 2422(b). U.S. v. Amador, 61 M.J. 619 (A.F.C.C.A. 2005); West's Key Number Digest, Military Justice 987.