State of N.J. v. Riley, __ N.J. Super. __ (Law Div. 2010), Indictment No. 08-09-0802, Mercer County, OSTRER, J.S.C., February 9, 2010:

Under New Jersey’s computer crime law, a person commits a third degree crime if he knowingly or purposely accesses computerized data without authorization or in excess of authorization. N.J.S.A. 2C:20-25(a). A person also commits a third degree crime if he so accesses data and then knowingly or recklessly discloses it. N.J.S.A. 2C:20-31(a).

As used in both statutes, “access” is defined to include not simply entry into a computer data base, but also acts of communication, storage and retrieval. It means “to instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer storage medium, computer system, or computer network.” N.J.S.A. 2C:20-23(a). Access also includes an act that “otherwise make[s] use of” the computer and data.

“Authorization” is defined to mean “permission, authority or consent” from the person who is empowered to give permission. It means:

[P]ermission, authority or consent given by a person who possesses lawful authority to grant such permission, authority or consent to another person to access, operate, use, obtain, take, copy, alter, damage or destroy a computer, computer network, … system, … equipment, … software, … program, … storage medium, or data.

[N.J.S.A. 2C:20-23(q)].

It is a defense to a charge of acting without or in excess of authorization, if a reasonable person would have believed he was authorized. “An actor has authorization if a reasonable person would believe that the act was authorized.” N.J.S.A. 2C:20-23(q). The statute does not label this an affirmative defense. So, the State must prove that a reasonable person would not believe he was authorized. See N.J.S.A. 2C:1-13(c).

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