Trespass

Trespass

Largely in response to the "hacking" phenomenon,FN95 legislatures have passed statutes that explicitly criminalize access to others' computer systems even where there is no malicious intent, no gain to the person making access, and no harm to the owner of the computer system, with the exception of an interference with the owner's right to exclusive possession of the computer.

Therefore, an indictment charging a defendant with computer trespass, where the statutory requirement that the defendant knowingly gain access to computer material is not supported by the factual allegations of the indictment and the omission is not merely a technical deficiency that can be remedied from the record as a whole, the defendant is entitled to dismissal, especially if neither the bill of particulars nor any other document supplies the missing facts.FN96

The offense of computer trespass is not committed when an employee copies his or her employer's proprietary computer script files on the day he or she leaves his or her employment, absent evidence that accessing the employer's trunk file was forbidden to the defendant, or that he or she had notice that it was forbidden. Consequently, an employee does not commit the crime of duplication of computer related material with intent to commit computer trespass where employees are not allowed to give the company's programs to outsiders, but accessing the trunk file, and even duplicating certain files and renaming them, does not constitute either a personal or nonbusiness use or a disclosure to an outsider.FN97

Cumulative Supplement

Cases:

Judicial enforcement of neutral trespass laws by former employer to enjoin a former employee from sending unsolicited e-mail to addresses on employer's computer systems did not constitute state action, and thus, did not implicate the First Amendment, even though its exclusion of others from speaking on its private e-mail system amounted to content discrimination. U.S.C.A. Const.Amends. 1, 14. Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (App. 3d Dist. 2001), review granted and opinion superseded, 118 Cal. Rptr. 2d 546, 43 P.3d 587 (Cal. 2002); West's Key Number Digest, Constitutional Law 90.1(9).

E-mail flood against former employer: Former employee's conduct in flooding his former employer's e-mail system was trespassory, entitling the employer to an injunction on a theory of trespass to chattels, though employer may not have demonstrated sufficient "harm" to trigger entitlement to nominal damages; employee was disrupting employer's business by using its property, employer was hurt by loss of productivity caused by thousands of employees distracted from their work and by time its security department spent trying to halt the distractions after employee refused to stop invading employer's internal, proprietary e-mail system, statute prohibiting entities from barraging a company with unwanted commercial e-mails was not intended to eliminate application of common law remedies, and no public benefit justified depriving employer of injunction. West's Ann.Cal.Bus. & Prof.Code § 17538.4. Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (App. 3d Dist. 2001), review granted and opinion superseded, 118 Cal. Rptr. 2d 546, 43 P.3d 587 (Cal. 2002); West's Key Number Digest, Trespass 7.

Defendant's conviction for computer trespass was supported by evidence that defendant, who was a computer programmer, deleted large amounts of code from his employer's computer in a vindictive and retaliatory manner and that employer did not give defendant authority or permission to delete portions of computer program. O.C.G.A. § 16-9-93(b). Fugarino v. State, 243 Ga. App. 268, 531 S.E.2d 187 (2000); West's Key Number Digest, Trespass 88.

"Accessing or attempting to access" used in statute defining misdemeanor computer trespass as "intentionally, and without authorization accessing or attempting to access any computer, computer system, computer network or computer software, program, documentation, data or property contained in any computer, computer system or computer network" was not unconstitutionally vague, as statute defined the term "access" in a way that gave person of ordinary intelligence a reasonable opportunity to know what was prohibited, and it also provided explicit standards for law enforcement to apply. K.S.A. 21-3755(a)(1), (d). State v. Rupnick, 280 Kan. 720, 125 P.3d 541 (2005); West's Key Number Digest, Telecommunications 1314.

Evidence that defendant, who worked at state department of taxation, used her log-in and employment identification to gain unauthorized access to computer records relating to victim's father, mother, brother and others with same last name as victim, even though victim had no outstanding tax issues at the time, was sufficient to support jury's inference that defendant was individual who unlawfully accessed records and excluded to a moral certainty any possible hypothesis of innocence, supporting defendant's conviction for computer trespass. McKinney's Penal Law § 156.10, Subd. 1. People v. O'Grady, 695 N.Y.S.2d 140 (App. Div. 3d Dep't 1999); West's Key Number Digest, Trespass 88.