Oregon Supreme Ct - July 21, 2016

by: Aalvarez@mpdlaw.com • July 22, 2016 • no comments

ORS 164.377 - Computer Crime - "Without Authorization"

Using a computer "without authorization" under ORS 164.377 does not include a scenario where an employer authorizes a person to use a computer but the person uses the computer for an improper use, meaning, a use that was inconsistent with the employer's personnel or computer use policies.

Here, the defendant was prosecuted for using a lottery terminal (which she was authorized to use), for the unauthorized purpose of printing lottery tickets for herself. She was ultimately charged with a computer crime under ORS 164.377 on the grounds that, although she was physically authorized to use the terminal, that the purpose for which she used it was "without authorization." On review to the Oregon Supreme Court, the Court noted that the legislative history shows that the "computer crime provisions were intended to address the unauthorized access of a computer by “hackers” or by others who had no authority whatsoever to use the computer—who, in the context of the technology of the time, were 'not authorized to dial.' There is no indication at all that the bill would reach the conduct of a person, such as defendant here, who was authorized by a computer owner to use the computer, but did so in violation of the owner’s policy or for a purpose not permitted by the owner." In evaluating the legislative history, the Court concluded that the phrase "without authorization" applies to the "use" or "access of the computer, which may be restricted by a password or other authentication/security procedures. Here, however, the defendant's employer did not restrict her use, nor was the physical act of using the computer to print lottery tickets in consistent with the scope of her unauthorized used. Although printing the tickets for herself could certainly be considered theft, it did not violate ORS 164.377(4). State v. Nascimento, 360 Or. 28 (2016)