Cybercrime is an unlawful action committed using electronic devices or internet services. It is a growing problem as most individuals conduct their lives online. While these offenses might not have physical consequences for the alleged victims, they could have severe impacts, like damage to reputation, businesses, and the economy, mainly when committed against unsophisticated people using basic methods and tools. Consequently, California has strict laws regulating this criminal activity. Please continue reading this article to learn about different types of cybercrimes, their penalties, and how to beat your criminal charges.
Internet Fraud
Fraud is deceiving a person to obtain something they value. Internet fraud is a blanket term describing different fraud offenses, including the following:
- Non-delivery merchandise fraud
- Advance fee fraud
- Work-at-home scam where a company has lucrative job offers that can be completed remotely but requires applicants to pay registration fees before work begins, but the firms and the jobs are nonexistent.
- A fraudulent sale transaction where a person sells products on Instagram that are different from what the seller represents them to be.
- Identity theft
Fraud is a catch-all offense that is prosecuted in federal court. To be convicted of this federal crime, the prosecution must prove the facts of the criminal activity below:
- The defendant had a plan or intention to commit fraud.
- The accused intended to defraud a person.
- The defendant used an electronic communication device to execute the scheme.
Please note that the prosecution does not have to verify that the plans to defraud were successful.
If you are found guilty of internet fraud under the federal statute, you risk paying fines and spending up to a twenty-year sentence in federal prison.
Phishing Crime
Phishing is a cybercrime that targets people via electronic media. Typically, the defendant pretends to be a person the victim knows to win their trust. It is classified into the following categories:
- Identity theft
- Credit card fraud
Identity Theft
You can be guilty of identity theft if you obtain another person’s personal details over email. PC 530.5 bans the following types of conduct:
- Willfully acquiring somebody else's personal identifying details and using them for unlawful purposes without the individual’s consent
- Obtaining or having possession of somebody else’s personal identifying details, without that individual’s permission and intending to defraud
- Selling, offering, or transferring the personal identifying details of somebody else, knowing that the defendant will use the details to commit fraud
Identity theft is a wobbler. If convicted, the penalties you face will depend on the specific conduct and whether you have a previous conviction. A misdemeanor attracts a fine of one thousand dollars, a year in county jail, and misdemeanor probation. On the other hand, a felony carries three years in state prison, a ten-thousand-dollar fine, and formal probation.
Navigating the complexities of identity theft criminal charges requires robust defense strategies. Here are three effective defenses your attorney could use to dispute the allegations based on your case facts:
- Absence of intent to defraud — This defense focuses on establishing that you did not use another person’s personal information to gain illegally or with a fraudulent motive. For this defense to be effective, you should prove it using witness statements or communication records. Also, proving a person misinterpreted your conduct can undermine the allegations.
- The victim consented to the conduct — The defense is valid when there exists an understanding or agreement between the defendant and the individual whose details were used, permitting the use of the information for specific purposes. You can present evidence like the written agreement, text messages, witness testimonies, or emails to support the defense.
- You are a victim of false accusation — It is not uncommon for a person to falsely accuse another when attempting to get them in trouble out of vengeance or anger. Sometimes, strangers can find a person online and target them to avoid financial constraints or debts.
Credit Card Fraud
Credit card fraud involves using the internet or email to collect another person’s credit card number and then using it to make illegal purchases.
The penalties you would face under PC 484e depend on whether the prosecution files the charge as petty theft or grand theft.
Grand theft is a wobbler that carries one year, sixteen months, two years, or three years of incarceration. On the other hand, petty theft is a misdemeanor punishable by six (6) months in jail and fines of $1,000.
You can challenge these criminal charges by raising strong defense strategies that can work to lower or dismiss your charges. They include the following:
- You did not intend to defraud — To be guilty of this crime, you must have acted with the intention of defrauding. In other words, proving you did not have the requisite intent is a legal defense.
- You do not have a credit card — PC 484e applies to debit and credit cards and does not entail items like property or cash. Consequently, it is a defense for you to claim that while you might have stolen or taken something, it was not a credit or debit card.
- Necessity — Also known as guilt with explanation, the necessity defense involves the accused person attempting to avoid guilt by proving they had a good reason to violate the law. In this case, you can argue that you violated the law due to an emergency.
- You had the cardholder’s consent — You only break this law if you act without the cardholder’s permission. You can urge that you reasonably believed you had the consent to purchase using the credit card, but it was a misunderstanding.
Defamation Laws
Defamation is the invasion of another individual’s reputation. It consists of fabricating false statements intended to hurt the alleged victim’s reputation. Please note that defamation is not a criminal offense in California.
When suing a person for defamation, you must meet the following criteria:
- False publication — During the case, you, the plaintiff, should verify that the liable party’s remarks were false.
- Willful publication of statements of fact — Defamation is an intentional tort. Therefore, it should be apparent that the responsible party’s conduct was intentional. In this context, the general public refers to contact with a third party who knows the message and can use it against the victim. You do not have to disseminate a willful publication to many people. Passing personal details to one individual is also defamation.
- The publication led to damage —A publication of information fits the definition if it results in injuries or special damages.
- Unprivileged publication— A remark is deemed defamation, provided it is unprivileged. A privileged publication includes publication committed in the right discharge of formal duty and judicial hearing.
Hacking Offense
Hacking becomes criminal when you access another person’s computer without their consent.
California Penal Code 502c is the law prohibiting unauthorized computer access. It makes it unlawful to:
- Intentionally access a computer, network, or system without authorization
- Access a computer to conceive or execute any scheme to defraud, deceive, or extort
- Intentionally facilitate access to a computer device intending to acquire data, money, or property
- Wrongfully obtain data, money, or property
Breaching this law is a wobbler (the prosecution can file it as a felony or misdemeanor, depending on the case facts).
Hacking becomes a felony if any of the following case facts apply:
- The crime caused damages or losses exceeding $950.
- You engaged in identity theft.
- You hacked a government agency’s computer.
- You engaged in hacking for financial gain.
A felony charge can lead to sixteen months, two (2), or three (3) years in state prison.
Hacking a person’s social media platform to snoop around would lead to a misdemeanor. On the other hand, hacking a governmental agency’s database to steal identities or to inflict major disruptions can result in felony charges.
A misdemeanor conviction is punishable by a year in county jail.
Fighting Hacking Criminal Charges
While the federal government takes cybercrime seriously, a skilled defense lawyer can develop a successful defense for you. The attorney understands that each criminal case is unique and will examine the case facts to find legal strategies to reduce or dismiss the charges. Common strategies they can use include the following:
- Lack of intent — The prosecutor must prove that you deliberately and knowingly hacked a computer. That means you are innocent if there was no intent. For instance, you can claim that you inadvertently clicked on an email attachment that released malware onto a computer network.
- Illegal search and seizure
Stalking Offense
PC 646.9a is California’s stalking statute. It prohibits following, harassing, and threatening another individual. With the widespread usage of the internet, most individuals utilize the web to stalk their alleged victim(s). Since the internet makes it problematic to regulate, you could be prosecuted for cyberstalking for different reasons.
Before convicting a suspect of cyberstalking, the prosecution team must demonstrate that:
- The defendant made serious threats that caused the alleged victim or their relatives to fear
- The accused intentionally and maliciously harassed the victim.
- The suspect committed the threats via the web or an electronic device.
Stalking is a wobbler. When deciding the nature of your criminal charges, the prosecution will consider the following:
- Your criminal record
- Whether the victim had a protective order against you
- Whether your criminal behavior is connected to domestic violence
As a California misdemeanor, cyberstalking attracts a year of incarceration and fines not exceeding a thousand dollars. On the contrary, a felony attracts five years, formal probation, and fines.
Some of the legal defenses that you and your attorney can use to fight the criminal charges include the following:
- Mistaken identity — Unless the alleged victim is technologically savvy, it can be challenging to identify a cyberstalker. While an individual might suspect you of stalking them, without any actual evidence, you cannot be convicted of the offense.
- First Amendment right — You can also use the 1st Amendment to the U.S. Constitution, which safeguards the right to free speech, as your defense.
- You did not make any serious threats — Threats made against an alleged victim must be credible, and you, the defendant, must be able to execute them. That means if you cannot carry out your threat, then you cannot be guilty of cyberstalking.
Child Pornography
Child pornography refers to materials like photographs, film, negatives, and videotapes depicting sexual acts like sexual penetration, anal intercourse, oral copulation, or masturbation by a child below 18.
Penal Code Section 311 PC bans producing, duplicating, sending, printing, possessing, and advertising child pornography. You could face criminal prosecution for convincing an underage child to engage in the production of child porn.
Before the court convicts you of this crime, the prosecution team must prove the following:
- You knew the material was showing minors participating in sexual behavior during the crime commission.
- You intentionally possessed, advertised, printed, or transported materials showing a juvenile below 18 participating in sexual conduct.
Some child pornography laws say that you only violate the law if the pornographic materials in question are obscene. Something becomes obscene when:
- It describes or shows sexual acts offensively.
- A reasonable individual would argue that it does not have artistic, political, scientific, or literary value.
- A rational adult would say that it appeals to a prurient interest (a morbid or shameful interest in excretion, sex, or nudity).
Based on the facts of the case, the crime can be prosecuted as a felony or misdemeanor. A misdemeanor attracts one (1) year in county jail and fines between one thousand dollars and two thousand five hundred dollars. A felony is punishable by three (3) years of incarceration.
Upon your conviction, the judge could also require you to register as a sex offender.
It is also a crime involving moral turpitude. Therefore, an immigrant can face adverse immigration consequences.
Finally, you risk losing your gun rights if convicted of a felony. California law bans felons from possessing, owning, and buying firearms.
Please note that you can expunge your conviction as long as you complete your jail sentence or probation. Expungement relieves you of the negative consequences of the conviction, offering you a fresh start. Post-conviction relief can help secure employment, affordable housing, and educational opportunities, as well as allow obtaining state professional licenses with ease.
Legal Defenses
Listed below are defenses and legal arguments that have proven effective with the prosecution team, juries, and judges:
- The materials do not satisfy the definition of California child porn.
- You did not act knowingly. (You can be sure that you clicked the wrong link, mistyped a search term, downloaded a file containing malware that downloaded child porn to your computer, or thought you were watching porn consisting of adults but had underage children).
- The materials serve legitimate purposes because you were engaging in scientific, educational, or medical activities.
- Law enforcers found the material through an illegal search and seizure.
- The police entrapped you.
Bullying Law
Bullying is harassing, threatening, intimidating, or humiliating someone. If the conduct occurs through electronic means, it is called cyberbullying.
Cyberbullying can take numerous forms, including the following:
- Disseminating lies online about someone
- Creating a false profile to impersonate or mock someone else
- Sending hate comments, emails, or texts
- Encouraging other internet users to bully an individual
Indirect electronic harassment is different from cyberstalking under PC 646.9 in that with the latter, the accused is the one who personally stalks or harasses the alleged victim. With cyberbullying, per PC 653.2, the accused is only required to post information on the web, encouraging others to stalk or harass the victim.
Before convicting you, the prosecution must prove the following facts about the crime:
- You used electronic communication devices to publish, distribute, hyperlink, email, or make available for downloading personal identifying details or a message with a harassing characteristic about somebody else.
- You acted so without the victim’s consent.
- You acted so intending to place the victim in reasonable fear for their safety or that of their family.
- You acted so to cause another person unwarranted physical contact, harassment, or injury.
- The message or personal identifying details you shared could generate or incite injury, harassment, or unwarranted physical contact.
Cyberbullying is a misdemeanor. It is punishable by the following potential penalties:
- Summary or misdemeanor probation
- A year in county jail
- $1,000 in fine
Legal Defenses
Legal strategies against cyberbullying are associated with the complex intent requirements of the offenses. Remember, you could only be found guilty if you planned to place the victim under reasonable fear and to cause another person(s) to harass, injure, or make unwanted physical contact with the victim.
It is easy for funny or casual comments to be misimplemented online. However, unless you had the required criminal intent, you cannot be convicted of cyberbullying, even when your posts led a person to harass another.
Find an Experienced Criminal Defense Lawyer Near Me
As the internet and electronic devices become more accessible, most people commit cybercrime because they can hide their identities and feel anonymous. However, you risk facing severe criminal charges if you are accused. Whether you are under investigation or charged with any cybercrime, you should first contact an experienced Van Nuys-based defense attorney. As soon as Leah Legal starts representing you, we can protect your legal rights and handle all communication with the prosecution team. We can also collect and review case evidence to develop an effective legal defense to help you obtain the most favorable case outcome. Please contact us at 818-484-1100 to schedule your case review.