During a recent hike in the hills of rural Pennsylvania, your writer observed large stretches of open forested areas dotted with trees displaying 1 ft. by 1 ft. square yellow signs boldly warning “Posted No Trespassing.” The signs, in various states of decay, emphatically warn a straying visitor that one has encroached upon another’s private property. Typical criminal statutes from ancient times to present have defined trespass as the unlawful entry onto another’s property—the property being geographically defined. In the virtual world, the warning notices and the geographical boundaries of the trespass may not be as clear.
Most of today’s computer trespass statutes include a specific element requiring the government to prove beyond a reasonable doubt that the accessing of the computer or computer network was “without authorization.”1 Despite its routine inclusion in the various statutes, litigation continues concerning the meaning of the term “without authorization.”2 Questions that have arisen include “Is there a computer trespass when authorization was at one time given and then rescinded, and, if so, how specific must the authorization and rescission be?” This article addresses these issues and the scope of this element in New York state’s statute, Penal Law §156.05, and its federal analog, the Computer Fraud and Abuse Act (CFAA).
New York’s Statute
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