Distribution of Malicious Software (Malware) (2024)

New York Computer Crimes Attorney Describes The Charge of Distribution of Malicious Software

Definition of Malicious Software

Malicious software, or malware, can be distributed in many different ways. Malware may be sent via email attachments, may be placed in downloadable files on the Internet, or may be installed when a computer user follows a link to a website. Backdoors, computer viruses, and trojan horses are all examples of software that is considered malicious and that can be installed using these or other methods.

Causing malware to be installed on someone else’s computer is a criminal offense for which you could face state or federal charges. It is important to defend yourself and to understand legal options available to you when you are accused of distribution of malicious software.

A New York City computer crimes lawyer at Bukh Law Firm, PLLC. can provide guidance and advice on how to respond to charges.

New York Laws and Penalties on Distribution of Malicious Software

New York’s penal code does not have a specific malware offense. Instead, those who are accused of the distribution of malicious software can be charged with:

• Unauthorized use of a computer: Knowingly accessing a computer, computer service, or computer network without proper authorization is a Class A misdemeanor under Code Section 156.05.
• Computer trespass: Code Section 156.10 makes it a Class E felony to knowingly use, cause to be used, or access a computer, network, or computer service with the intent to commit or facilitate the commission of a felony or to gain access to computer material.
• Computer tampering in the first, second, third, or fourth degree. These offenses range from a Class A misdemeanor under Code Section 156.20 to a Class C felony under Code Section 156.27 depending upon the methods used to tamper with the computer and the amount of damage done as a result.

You can be charged with these offenses even if you never had direct access to anyone’s computer, as long as the malware you were responsible for distributing accessed the system. You could go to prison for as long as 15 years for each offense of first degree computer tampering, so penalties if convicted can be very significant.

Federal Laws and Punishment for Distribution of Malicious Software

The federal government criminalizes the distribution of malicious software in 18 U.S. Code Section 1030. Section 5(A) specifically prohibits you from knowingly causing information, code, commands or programs to be transmitted to a computer without authorization.

You can be charged with this offense if you knowingly transmit any information that would cause damage; if you recklessly cause damage through the transmission of information; or if you unintentionally cause damage due to knowingly and purposefully accessing a protected computer.

Depending upon the damage from the malicious software, you could face anywhere from one year imprisonment and a $100,000 fine to 20 years of incarceration and a $250,000 fine. A history of past convictions can also affect your potential charges and penalties for distribution of malware.

How a Cyber Crime Lawyer Can Help

There are defenses to an accusation of distributing malicious software. Possible defenses you can raise include unintentional distribution of the software; entrapment and duress. A New York City computer crimes lawyer can provide assistance in making a case in trial designed to introduce doubt about whether you committed a computer crime. In the U.S. Justice system where guilt must be proved beyond a reasonable doubt, you do not have to prove innocence to avoid conviction for distribution of malicious software.

Other options when responding to charges may include negotiating a plea bargain or, if evidence was collected from your computer as part of an illegal search, arguing that the evidence should be suppressed and not be used against you.

Bukh Law Firm, PLLC. has represented clients in many high-profile computer crimes cases and we can help you to explore your options and respond strategically to computer crimes charges. Call today to get the legal help you need if you have been accused of distributing malware.