NY Penal Law § 156.26: Computer Tampering in the Second Degree

If you gain access to a computer without authorization and then alter or destroy computer data or a computer program, you will have committed the crime of computer tampering. The crime of unauthorized access of a computer can entail a number of different activities, including deciphering another person’s secret password and utilizing it to access that person’s computer, sharing a password to other individuals who do not have authorization to access the computer, hacking into someone’s computer over the internet, or posing as another person in order to access computer services that would otherwise not be available to you. Pursuant to New York Penal Law § 156.26, you have committed the crime of computer tampering in the second degree if you use or gain access to a computer, computer service, or computer network without authorization and you intentionally alter or destroy computer data or a computer program of another person, and:

1. The damages are more than $2,000,
2. The computer material includes the medical records of identifiable individuals and, as a result of the alteration or destruction, those people sustain serious physical injury, and 
3. you knew about and disregarded the substantial risk that such serious physical injury may take place.

An Example

Blanche, a computer tech, got slapped with a suit for breach of contract. Furious about the lawsuit, Blanche took revenge by hacking into the computer system of the plaintiff’s attorney.  She altered or destroyed 30 documents.  The documents included pleadings, contracts, memoranda and other kinds of client work.  A great deal of the work could not be recovered by the firm’s IT team. The attorneys would be obligated to recreate it all. When the hours that were required to recreate all of the documents were calculated, the damage sustained by the firm was $5000. Blanche could face prosecution for computer tampering in the second degree due to the unauthorized access to the computer system and the amount of damage involved.

Offenses that are Related

Unauthorized use of a computer: New York Penal Law § 156.05

Computer trespass: New York Penal Law § 156.10

Criminal possession of computer related material: New York Penal Law § 156.35

Computer tampering in the fourth degree: New York Penal Law § 156.20

Computer tampering in the third degree: New York Penal Law § 156.25

Possible Defenses

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Pursuant to the computer tampering statute, a defense against this charge would be that you had a good reason to believe that you were authorized to alter or destroy the computer data. An alternative defense would be if you could demonstrate that you were not the one who altered or destroyed the material. For example, if the prosecutor’s case is built on the basis of evidence that the access to the computer was gained from an IP address owned by you, then if someone else utilized your IP address without your knowledge or without your permission to alter or destroy material on another computer, the prosecutor would have a tough time convincing a court that you are guilty.

Legal Scenario: What Would You Do?

Scenario

Your ex-roommate claims you logged into their laptop using a password you knew from when you lived together and deleted personal files after a heated dispute over unpaid bills. Police have now contacted you saying they want to discuss allegations of computer tampering.

Can I really be charged with a felony for deleting files on a computer I used to have access to?

Attorney's Answer

Under NY Penal Law § 156.26, computer tampering in the second degree is a Class E felony that applies when someone intentionally alters or destroys computer data after gaining access without authorization, and the resulting damage exceeds $3,000 in value. Even though you previously had permission to use the laptop, that access was revoked when you moved out, meaning any subsequent use of the password could constitute unauthorized access under NY Penal Law § 156.05. A conviction carries up to four years in prison, so it is critical to avoid making any statements to police before consulting with a defense attorney. We would need to examine whether the alleged damages meet the statutory threshold and whether your prior authorized access creates a viable defense to the unauthorized access element of the charge.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Computer tampering in the second degree is categorized as a Class D felony. This means that, should you be convicted, the maximum prison sentence that you could get is 7 years. Your sentence might also include a probation term of 5 years as well as the obligation to pay a substantial fine.