This is not exactly like the Lori Drew prosecution, but it is close. In State v. Wolfe, No. 08-CA-16 (Ohio Ct.App. April 28, 2009)(WARNING: The opinion contains adult language about sex and wastewater treatment), an Ohio intermediate appellate court upheld the computer hacking conviction of a man who used his workplace computer to upload nude pictures of himself to the Adult Friendfinder Web site.
The statute, Ohio R.C. 2913.04(B), provides:
(B) No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent.
The offense is a felony.
The State's "unauthorized use" case was based on the theory that the defendant was acting outside the scope of his authorization to use the computer by using it to solicit prostitution, a crime. The appellate court agreed:
Having found that the State presented evidence Appellant used his computer to upload nude pictures of himself onto adult dating sites and to access certain pornographic websites to support the charge of solicitation, in addition to using his computer to engage in the criminal act of solicitation, we find such conduct was "beyond the scope of the express or implied consent and the charge of "unauthorized use of a computer" was based upon sufficient evidence.
The opinion is unclear whether the unauthorized-use finding was based on the employer's acceptable use policy. The court notes the defendant's admission that his conduct was in violation of established work practices, and was "unethical and wrong." However, the court doesn't tease out which of the defendant's acts were "unauthorized" under the statute. Accessing porn sites, uploading nude pictures of himself, committing a criminal act by soliciting an act of prostitution? Any one of these activities, or all of them together? I wish the court had said more about this issue. Ditto for the court's one-sentence rejection of the defendant's argument that his conviction on these facts is contrary to public policy.
Mercifully, the appellate court vacated the defendant's conviction for "theft in office." The prosecution's theory was that the defendant had stolen 100 hours worth of wages from his employer by spending this time trolling for sex online instead of working. It valued this loss at $2,392.00. The jury agreed and the sentencing judge ordered the defendant to repay the amount as restitution. But the appellate court vacated the conviction, noting the lack of evidence that the defendant's job performance had been impaired.
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