Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-2316, §13-2316.01 and §13-2316.02, "Computer Tampering"; "Unlawful Possession of an Access Device"; and AUnauthorized Release of Proprietary or Confidential Computer Security Information are sometimes collectively referred to as "Computer Crimes".
Per A.R.S. §13-2316, Computer Tampering usually occurs when somebody "hacks" into a system in order to disrupt, alter, damage, or destroy that particular system's data. Sometime this occurs when a disgruntled employee is leaving employment of a business and they choose to "crash" the system or corrupt data. Sometimes this will occur when a "hacker" attempts to obtain confidential data, or when a person uses a computer to terrorize or threaten another person. The crime can be tried or charged in the County in which the victimized computer or network resides; the County in which the computer utilized to commit the crime resides; the County in which the documents or data was located; the County in which any authorized user was denied service resides; or any County in which a critical infrastructure resource which was tampered with resides.
Per A.R.S. §13-2316.01, Unlawful Possession of an Access Device would occur when a person knowingly possesses, sells, or publishes an Access Device without the consent of the issuer. It is automatically assumed when a person possesses five (5) or more access devices without the consent of the issuer, and it can give an inference that the person planned on distributing or selling these devices.
Per A.R.S. §13-2306.02, Unauthorized Release of Proprietary or Confidential Computer Security Information again usually occurs with computer "hackers" attempting to distribute information and means to other hackers regarding ways to bypass computer security. As with all three of these charges, there are numerous defenses and exceptions to the charges.
If the computer which has been tampered with is at a Critical Infrastructure Resource (i.e., a power plant or power grid), then this can be charged as a class two (2) felony. For a first offense class two (2) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of three (3) years to twelve and one half (12.5) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is four and one half (4.5) years to twenty-three and one quarter (23.25) years in prison. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is ten and one half (10.5) years to thirty-five (35) years of incarceration.
If the computer tampered with was used with the intent to devise or execute any scheme or artifice to defraud or deceive or control property of services by means of a false or fraudulent pretense, representation, or promise, then this can be charged as a class three (3) felony. For a first offense class three (3) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison range of two (2) years to eight and three quarters (8.75) years in prison. If the person has one (1) allegeable historical prior conviction then the "prison only" range is three and one half (3.5) years to sixteen and one quarter (16.25) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is seven and one half (7.5) years to twenty-five (25) years of incarceration.
If the computer tampering was committed with the intent to alter, destroy, delete computer programs and data, or to deny access to that data, then this can be charged as a class four (4) felony. In addition, possession of 100 or more access devices is also a class four (4) felony. Lastly, the Unauthorized Release of Proprietary or Confidential Computer Security Information which relates to a critical infrastructure resource is also a class four (4) felony. For a first offense class four (4) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of one (1) year to three and three quarters (3.75) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is two and one quarter (2.25) years to seven and one half (7.5) years of incarceration. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is six (6) years to fifteen (15) years of incarceration.
If the computer was tampered with or was recklessly used in order to engage in a scheme or the course of conduct that is directed at another person that seriously alarms, torments, threatens or terrorizes that person, then this can be charged as a class five (5) felony. In addition, the Unlawful Possession of five (5) or more, but fewer than 100, Access Devices is also a class five (5) felony. For a first offense class five (5) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of six (6) months to two and one half (2.5) years in custody. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is one (1) year to three and three quarters (3.75) years of incarceration. If the person has two (2) allegeable historical prior convictions then the "prison only" range can is three (3) years to seven and one half (7.5) years of incarceration.
Any person who tampers with a computer and knowingly obtains information that is required by law to be kept confidential, or non-public records, or a person simply knowingly accesses any computer or computer system or software program or data that is contained in a computer system (without their permission), then this can be charged as a class (six) 6 felony. In addition, the Unlawful Possession of fewer than five (5) Access Devices is a class six (6) felony. Also, the Unauthorized Release of Proprietary Confidential Computer Security Information that is not related to a critical infrastructure resource can also be charged as a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the "prison only" range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical prior convictions, then the "prison only" range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
A key defense for these types of crimes is "Lack of Knowledge" and "Mistaken Identity". This can occur when another person (i.e., a "hacker") utilizes a Defendant's computer terminal (or somehow routes the tampering through the Defendant's computer), without the Defendant's knowledge. In today's world, hackers are getting very sophisticated and have found ways to reroute IP addresses in order to misdirect suspicion. In addition, co-workers will often know each other's passwords, and then they will use a co-worker's terminal to commit unauthorized access of data or computer tampering. This is not unlike a bank teller dipping into another bank teller's drawer in order to take funds and throw suspicion away from themselves.
Another defense would be "Lack of Intent" to do the damage describe in the statute. In other words, a hacker may be simply attempting to get into a data base in order to alter a website for humorous purposes, and not for deceptive or "Identity Theft" purposes. Many times the Prosecutors will overcharge these types of crimes, and it is necessary to interview all witnesses and present all surrounding facts in order to reduce the level of the charges.
The "Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a "Voluntariness" standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, "Denial of Right to Counsel" is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / "cloning hard drive" procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®), with the most Certified Criminal Law Specialists of any AV® rated Arizona Law Firm, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it's lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.
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