Use P2P, Go to Jail. Any Questions?
Subject:   McOwen is not guilty
Date:   2001-12-22 00:22:27
From:   ncdave
Under Georgia law, There are three elements that the State has to prove. It is not sufficient to show that he acted without authorization. He must have been without authorization, AND he must have KNOWN that he was without authorization, AND he must have INTENDED to do one of the SPECIFIC things that is forbidden by the statute... and the State has the burden to PROVE all three elements.

That's the law.

The State MIGHT be able to prove the first element, but it is doubtful that they can prove the second, and the third is impossible.
Mr. McOwen's actions do not match the definition of the crimes with which he is charged. You may read the statute here:|computer%20theft|intention
and here:

This is the relevant portion:

| 16-9-93.
| (a) Computer Theft. Any person who uses a computer or computer
| network with knowledge that such use is without authority and
| with the intention of:
| (1) Taking or appropriating any property of another, whether
| or not with the intention of depriving the owner of possession;
| (2) Obtaining property by any deceitful means or artful practice;
| or
| (3) Converting property to such person's use in violation of an
| agreement or other known legal obligation to make a specified
| application or disposition of such property
| shall be guilty of the crime of computer theft.
| (b) Computer Trespass. Any person who uses a computer or computer
| network with knowledge that such use is without authority and with
| the intention of:
| (1) Deleting or in any way removing, either temporarily or
| permanently, any computer program or data from a computer or
| computer network;
| (2) Obstructing, interrupting, or in any way interfering with
| the use of a computer program or data; or
| (3) Altering, damaging, or in any way causing the malfunction
| of a computer, computer network, or computer program, regardless
| of how long the alteration, damage, or malfunction persists
| shall be guilty of the crime of computer trespass.

McOwen is charged with "computer theft" and "computer tresspass."

But the text of the statute defining these crimes plainly says that for a person to be in violation of them he must have had the INTENTION of taking someone else's property for his own use (computer theft), and the INTENTION of damaging or obstructing the use of a computer (computer trespass).

McOwen plainly intended neither. He intended no harm. He took nothing for himself. He did not personally benefit in any way from installing the RC5 program. He certainly did not intend to damage or obstruct the use of any computer. The RC5 program which he installed does neither.

Plus, since this is a criminal matter, the State must PROVE all 3 elements of the alleged crime, INCLUDING criminal intent. The burden of proof is on the prosecution.

This is important: For a person to be found guilty of either of these offenses, the State must prove THREE elements:
1) That the person was without authority to do what he did, and
2) That the peson KNEW he lacked that authority, and
3) That the person INTENDED to do the things forbidden by the statute, such as damaging a computer or obstructing its use.

Whether or not McOwen had proper authority to install the program is in dispute. He apparently thought so, or so he claims, and he clearly had authority to access the computers in question and make changes to their configurations. But it is alleged that he exceeded that authority when he installed the RC5 program.

Perhaps so. But for the purposes of this case, it doesn't matter, because there can be no doubt that he did not INTEND the particular offenses forbidden in the statute. Therefore, according to the language of the statute, McOwen did not violate the law.


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  1. I disagree
    2002-01-22 02:24:58  rholliday [View]

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