The Manhattan District Attorney’s office last week prevailed over Sergey Aleynikov, the former Goldman Sachs high frequency trading programmer accused of stealing computer source code from the bank, on just one count of the three of which he was charged. It is somewhat hard to imagine how one might be found guilty of “unlawful use of secret scientific material” (N.Y. Penal Law § 165.07 as defined in § 155.00(6)), yet not get convicted for “unlawful duplication of computer related material” (N.Y. Penal Law § 156.30).

With Mr. Aleynikov previously avoiding federal charges of theft of trade secrets under the Economic Espionage Act and National Stolen Property Act, state prosecutors tried their hand on somewhat equivalent state statutes concerning computer crimes. Whether the split decision will withstand review by the trial court judge and ultimately on appeal remains to be seen.

The underlying facts were not challenged at trial. Mr. Aleynikov essentially admitted that he downloaded Goldman source code and attempted to cover his tracks by deleting the history of commands on his computer. The focus of his defense was that he did not acquire a “major portion” of the economic value of the source code as required by the New York Penal Code Section at issue. Also, he argued that he did not make a “tangible” reproduction of the files, another element required for proving unlawful use of secret scientific material.

That the jury took nearly a week to deliberate and required the jury instructions to be re-read and eventually provided in writing is indicative of how difficult it can be to try and prove any case involving the theft or unauthorized use of computer source code. Given the ease with which such crimes can be accomplished, we are sure to see more developments of the law in this area in the immediate future.