In this dаy of wide dissemination of thoughts and messages through transmissions which are vulnerable to interception and readable by unintended parties, armed with software, spyware, viruses and cookies spreading capacity, the concept of Internet privacy is a fallacy upon which no one should rely.
It is today’s reality that a reasonable expectation of Internet privacy is lost, upon your affirmative keystroke. Compound that reality with an employee’s use of his or her employer’s computer for the transmittal of non-business-related messages, and the technological reality meets the legal roadway, which equals the exit of any reasonable expectation of, or right to, privacy in such communications.
In the case at bar, the defendant, Andrew Klapper, is charged with unauthorized use of a computer under Penal Law § 156.05. By omnibus motion, the defendant moves to dismiss the charge as facially insufficient and for various other relief. For the following reasons, defendant’s motion to dismiss for facial insufficiency is granted.
Facial Sufficiency
In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if truе, establish every element of the offense charged and defendant’s commission thereof (CPL 100.15 [3]; 100.40 [1]; see People v Dumas,
The requirement of nonhearsay allegations has been described as a “much more demanding standard” than a showing of reasonable cause alone (People v Alejandro,
The factual portion of the accusatory instrument alleges, in pertinent parts, that
“[d]eponent is informed by a first individual known to the District Attorney’s Office that the defendant installed software on a computer at the defendant’s office that recorded the keystrokes entered by the users of said computer.
“Deponent further states that deponent is further informed by a second individual known to the District Attorney’s Office that said sеcond individual was an employee at the defendant’s office and was instructed by the defendant to use only the above mentioned computer. Deponent further states that deponent is further informed by said second individual that said second individual then used the above-mentioned computer for work-related purposes, including to access and use a personal e-mail account.
“Deponent further states that deponent is further informed by the first individual that the software installed by the defendant on the above-mentioned computer recorded the password for the e-mail account of the second individual. Deponent further states that deponent is further informed by the first individual that said first individual observеd the defendant access the second individual’s e-mail account and print copies of computer data and computer material contained within the second individual’s e-mail account.
“Deponent further states that deponent is further informed by the second individual that the defendant e-mailed said second individual an electronic doсument that contained portions of e-mails generated from said second individual’s e-mail account. Deponent further states that deponent is further informed by said second individual that the defendant had no permission or authority to access said second individual’s personal e-mail account or to take or use any computer data, cоmputer material, or other electronic information stored in said second individual’s personal e-mail account.”
A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization. (Penal Law § 156.05.) A computer is defined as
“a device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data, and includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data.” (Penal Law § 156.00 [1].)
A computer service includes “any and all services provided by or through the facilities of any computer communication system allowing the input, output, examination, or transfer, of computer data or computer programs from one computer to another.” (Penal Law § 156.00 [4].) Under the statute, to access a computer, computer service or computеr network means “to instruct, communicate with, store data in, retrieve from, or otherwise make use of any resources of a computer, physically, directly or by electronic means.” (Penal Law § 156.00 [7].)
Therefore, in sum, to support the charge the allegations must allege facts of an evidentiary nature to establish that defendant (1) knowingly used or acсessed a computer or services; (2) without authorization.
At issue before this court is whether the above allegations are sufficiently pleaded to support the charge of unauthorized computer use. Specifically, the element of “without authorization.”
Defendant contends that the accusatory instrument fails to allege facts sufficient tо establish a prima facie case to support the charge of unauthorized use of a computer. Specifically, de
The People oppose defendant’s motion and contend that the factual allegations are sufficiently pleaded to support the charge. First, the People contend that the allegations that defendant wаs (1) observed by another employee installing keystroke-tracking software on a computer, (2) that he instructed complainant to use said computer, (3) that complainant did use said computer “for work-related purposes, including to access and use a personal email account,” and (4) that defendant was later observed acсessing said e-mail are sufficient to support the charge, as the allegations provide defendant with the conduct and crime that he is alleged to have committed. Second, the People contend that the question of whether the defendant, as an employer, had the authority to access the e-mail account is an issue of fact fоr trial, as the complainant’s use of the computer for work-related purposes goes to the weight, not the sufficiency of the charges. This court disagrees with the People and finds that under the circumstances herein the factual allegations fail to establish the element of “without authorization,” and as such the accusatory instrument is jurisdictionally dеfective.
Penal Law § 156.00 (8) defines “without authorization” to mean the use or access of “a computer, computer service or computer network without the permission of the owner . . . where such person” (1) knew that access was without permission or (2) had actual notice that he or she did not have permission from the owner of the computer or computer service, or (3) by proof that the user knowingly circumvented a security measure installed or used by the owner of the computer or computer service.
The allegations viewed in the light most favorable to the People (see People v Danielson,
It is not contested that defendant owned the computer, as the allegations clearly state that the keystroke-tracking software was installed “on a computer at the defendant’s office.” The allegations further state that the complainant was “an employee at the defendant’s office” and that complainant used said “computer for work-related purposes, including to access and use a personal e-mail account.” However, the allegations do not allegе that defendant, the computer owner, had notice of any limited access to the computer or the e-mail account. The allegations further fail to allege that complainant had installed a security device to prevent unauthorized access or use. Conversely, the allegations state that defendant sent an e-mail to complainant containing documents from her e-mail account, which supports an inference that defendant did not have notice or at minimum had a reasonable belief that his access was not prohibited or limited.
Review of the case law establishes that where a defendant, like the one herein, has some authority over the computer or computer services, to sufficiently establish the element of “without authorization” the factual allegations must clearly set forth facts to support that defendant had knowledge or actual notice that the particular access was prohibited or that defendant circumvented some security device or measure installed by the user. (See People v Katakam,
For example, in People v Katakam (
Similarly, in People v Esposito (
Whereas some may view e-mails as tantamount to a postal letter which is afforded some level of privacy, this court finds, in general, e-mails are more akin to a postcard, as they are less secure and can easily be viewed by a passerby. Moreover, e-mails are easily intercepted, since the technology of receiving an e-mail message from the sender requires travel through a network, firewall, and service provider before reaching its final destination, which may have its own network, service provider and firewall. An employee who sends an e-mail, be it personal or work-related, from a work computer sends an e-mail that will travel through an employer’s central computer, which is commonly stored on the employer’s server even after it is received and read. Once stored оn the server, an employer can easily scan or read all stored e-mails or data. The same holds true once the e-mail reaches its destination, as it travels through the Internet via an Internet service provider. Accordingly, this process diminishes an individual’s expectation of privacy in e-mail communications. (See Scott v Beth Israel Med. Ctr. Inc.,
By the same accord, in enacting Penal Law § 156.05, the legislative intent was to criminalize computer intrusions where
The allegations herein, as in Esposito and Katakam, fail to allege facts establishing that defendant’s access to the computer and e-mail exceeded his authorized access as the computer owner and employer, since the allegations are devoid of facts to support that defendant had notice of any prohibition or limitation regarding access. Furthermore, the allegations also fail to state whether the complainant gave notice to the defendant or that defendant was aware of any limited access. (See Esposito, supra.) Although the allegations state the defendant installed keystroke-tracking software and was seen accessing an e-mail account, they fail to sufficiently support the claim that defendant’s access was without authorization, inasmuch as (1) defendant owned the computer and (2) the e-mail ownership is unstated. Accordingly, this court finds the allegations herein fail to support that defendant’s access was unauthorized or that defendant was on notice that access was unauthorized.
The allegations also fail to set forth sufficient facts to establish that defendant circumvented a security device or password or that complainant had installed any security protections to prevеnt the defendant’s authorization or access to the computer or e-mail account. (See People v Goss, NYLJ, Mar. 15, 2005, at 21, col 1 [Suffolk Dist Ct] [finding that although information alleged defendant typed in the user’s screen name knowing he did not have permission, the allegations were insufficient to support the charge since they failed to allege that the computer was equipрed with a safety device to avoid unauthorized access or use]; see also People v Angeles,
Therefore, for the reasons set forth, defendant’s motion to dismiss the accusatory instrument as facially insufficient is granted. Given the dismissal of the accusatory instrument, defendant’s remaining motions are also dismissed as moot.