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Revised Computer Crime Sentencing Guidelines
From Jack King (gjk@well.sf.ca.us)
The U.S. Dept. of Justice has asked the U.S. Sentencing Commission to
promulgate a new federal sentencing guideline, Sec. 2F2.1, specifically
addressing the Computer Fraud and Abuse Act of 1988 (18 USC 1030), with a
base offense level of 6 and enhancements of 4 to 6 levels for violations of
specific provisions of the statute. The new guideline practically
guarantees some period of confinement, even for first offenders who plead
guilty.
For example, the guideline would provide that if the defendant obtained
``protected'' information (defined as ``private information, non-public
government information, or proprietary commercial information), the offense
level would be increased by two; if the defendant disclosed protected
information to any person, the offense level would be increased by four
levels, and if the defendant distributed the information by means of ``a
general distribution system,'' the offense level would go up six levels.
The proposed commentary explains that a ``general distribution system''
includes ``electronic bulletin board and voice mail systems, newsletters
and other publications, and any other form of group dissemination, by any
means.''
So, in effect, a person who obtains information from the computer of
another, and gives that information to another gets a base offense level of
10; if he used a 'zine or BBS to disseminate it, he would get a base
offense level of 12. The federal guidelines prescribe 6-12 months in jail
for a first offender with an offense level of 10, and 10-16 months for same
with an offense level of 12. Pleading guilty can get the base offense
level down by two levels; probation would then be an option for the first
offender with an offense level of 10 (reduced to 8). But remember: there
is no more federal parole. The time a defendant gets is the time s/he
serves (minus a couple days a month "good time").
If, however, the offense caused an economic loss, the offense level would
be increased according to the general fraud table (Sec. 2F1.1). The
proposed commentary explains that computer offenses often cause intangible
harms, such as individual privacy rights or by impairing computer
operations, property values not readily translatable to the general fraud
table. The proposed commentary also suggests that if the defendant has a
prior conviction for ``similar misconduct that is not adequately reflected
in the criminal history score, an upward departure may be warranted.'' An
upward departure may also be warranted, DOJ suggests, if ``the defendant's
conduct has affected or was likely to affect public service or confidence''
in ``public interests'' such as common carriers, utilities, and
institutions. Based on the way U.S. Attorneys and their computer experts
have guesstimated economic "losses" in a few prior cases, a convicted
tamperer can get whacked with a couple of years in the slammer, a whopping
fine, full "restitution" and one to two years of supervised release (which
is like going to a parole officer). (Actually, it *is* going to a parole
officer, because although there is no more federal parole, they didn't get
rid of all those parole officers. They have them supervise convicts' return
to society.)
This, and other proposed sentencing guidelines, can be found at 57 Fed Reg
62832-62857 (Dec. 31, 1992).
The U.S. Sentencing Commission wants to hear from YOU. Write: U.S.
Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington
DC 20002-8002, Attention: Public Information. Comments must be received by
March 15, 1993.
* * *
Actual text of relevant amendments:
UNITED STATES SENTENCING COMMISSION
AGENCY: United States Sentencing Commission.
57 FR 62832
December 31, 1992
Sentencing Guidelines for United States Courts
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment.
Notice of hearing.
SUMMARY: The Commission is considering promulgating certain amendments
to the sentencing guidelines, policy statements, and commentary. The
proposed amendments and a synopsis of issues to be addressed are set
forth below. The Commission may report amendments to the Congress on or
before May 1, 1993. Comment is sought on all proposals, alternative
proposals, and any other aspect of the sentencing guidelines, policy
statements, and commentary.
DATES: The Commission has scheduled a public hearing on these proposed
amendments for March 22, 1993, at 9:30 a.m. at the Ceremonial Courtroom,
United States Courthouse, 3d and Constitution Avenue, NW., Washington,
DC 20001.
Anyone wishing to testify at this public hearing should notify
Michael Courlander, Public Information Specialist, at (202) 273-4590 by
March 1, 1993.
Public comment, as well as written testimony for the hearing, should
be received by the Commission no later than March 15, 1993, in order to
be considered by the Commission in the promulgation of amendments due to
the Congress by May 1, 1993.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., suite 2-500, South Lobby,
Washington, DC 20002-8002, Attention: Public Information.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
59. Synopsis of Amendment: This amendment creates a new guideline
applicable to violations of the Computer Fraud and Abuse Act of 1988 (18
U.S.C. 1030). Violations of this statute are currently subject to the
fraud guidelines at S. 2F1.1, which rely heavily on the dollar amount of
loss caused to the victim. Computer offenses, however, commonly protect
against harms that cannot be adequately quantified by examining dollar
losses. Illegal access to consumer credit reports, for example, which
may have little monetary value, nevertheless can represent a serious
intrusion into privacy interests. Illegal intrusions in the computers
which control telephone systems may disrupt normal telephone service and
present hazards to emergency systems, neither of which are readily
quantifiable. This amendment proposes a new Section 2F2.1, which
provides sentencing guidelines particularly designed for this unique and
rapidly developing area of the law.
Proposed Amendment: Part F is amended by inserting the following
section, numbered S. 2F2.1, and captioned "Computer Fraud and Abuse,"
immediately following Section 2F1.2:
"S. 2F2.1. Computer Fraud and Abuse
(a) Base Offense Level: 6
(b) Specific Offense Characteristics
(1) Reliability of data. If the defendant altered information,
increase by 2 levels; if the defendant altered protected information, or
public records filed or maintained under law or regulation, increase by
6 levels.
(2) Confidentiality of data. If the defendant obtained protected
information, increase by 2 levels; if the defendant disclosed protected
information to any person, increase by 4 levels; if the defendant
disclosed protected information to the public by means of a general
distribution system, increase by 6 levels.
Provided that the cumulative adjustments from (1) and (2), shall not
exceed 8.
(3) If the offense caused or was likely to cause
(A) interference with the administration of justice (civil or
criminal) or harm to any person's health or safety, or
(B) interference with any facility (public or private) or
communications network that serves the public health or safety, increase
by 6 levels.
(4) If the offense caused economic loss, increase the offense level
according to the tables in S. 2F1.1 (Fraud and Deceit). In using those
tables, include the following:
(A) Costs of system recovery, and
(B) Consequential losses from trafficking in passwords.
(5) If an offense was committed for the purpose of malicious
destruction or damage, increase by 4 levels.
(c) Cross References
(1) If the offense is also covered by another offense guideline
section, apply that offense guideline section if the resulting level is
greater. Other guidelines that may cover the same conduct include, for
example: for 18 U.S.C. 1030(a)(1), S. 2M3.2 (Gathering National Defense
Information); for 18 U.S.C. 1030(a)(3), S. 2B1.1 (Larceny,
Embezzlement, and Other Forms of Theft), S. 2B1.2 (Receiving,
Transporting, Transferring, Transmitting, or Possessing Stolen
Property), and S. 2H3.1 (Interception of Communications or
Eavesdropping); for 18 U.S.C. 1030(a)(4), S. 2F1.1 (Fraud and Deceit),
and S. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft); for 18
U.S.C. S. 1030(a)(5), S. 2H2.1 (Obstructing an Election or
Registration), S. 2J1.2 (Obstruction of Justice), and S. 2B3.2
(Extortion); and for 18 U.S.C. S. 1030(a)(6), S. 2F1.1 (Fraud and
Deceit) and S. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).
Commentary
Statutory Provisions: 18 U.S.C. 1030(a)(1)-(a)(6)
Application Notes:
1. This guideline is necessary because computer offenses often harm
intangible values, such as privacy rights or the unimpaired operation of
networks, more than the kinds of property values which the general fraud
table measures. See S. 2F1.1, Note 10. If the defendant was previously
convicted of similar misconduct that is not adequately reflected in the
criminal history score, an upward departure may be warranted.
2. The harms expressed in paragraph (b)(1) pertain to the reliability
and integrity of data; those in (b)(2) concern the confidentiality and
privacy of data. Although some crimes will cause both harms, it is
possible to cause either one alone. Clearly a defendant can obtain or
distribute protected information without altering it. And by launching a
virus, a defendant may alter or destroy data without ever obtaining it.
For this reason, the harms are listed separately and are meant to be
cumulative.
3. The terms "information," "records," and "data" are
interchangeable.
4. The term "protected information" means private information, non-
public government information, or proprietary commercial information.
5. The term "private information" means confidential information
(including medical, financial, educational, employment, legal, and tax
information) maintained under law, regulation, or other duty (whether
held by public agencies or privately) regarding the history or status of
any person, business, corporation, or other organization.
6. The term "non-public government information" means unclassified
information which was maintained by any government agency, contractor or
agent; which had not been released to the public; and which was related
to military operations or readiness, foreign relations or intelligence,
or law enforcement investigations or operations.
7. The term "proprietary commercial information" means non-public
business information, including information which is sensitive,
confidential, restricted, trade secret, or otherwise not meant for
public distribution. If the proprietary information has an ascertainable
value, apply paragraph (b) (4) to the economic loss rather than (b) (1)
and (2), if the resulting offense level is greater.
8. Public records protected under paragraph (b) (1) must be filed or
maintained under a law or regulation of the federal government, a state
or territory, or any of their political subdivisions.
9. The term "altered" covers all changes to data, whether the
defendant added, deleted, amended, or destroyed any or all of it.
10. A "general distribution system" includes electronic bulletin
board and voice mail systems, newsletters and other publications, and
any other form of group dissemination, by any means.
11. The term "malicious destruction or damage" includes injury to
business and personal reputations.
12. Costs of system recovery: Include the costs accrued by the victim
in identifying and tracking the defendant, ascertaining the damage, and
restoring the system or data to its original condition.
In computing these costs, include material and personnel costs, as well
as losses incurred from interruptions of service. If several people
obtained unauthorized access to any system during the same period, each
defendant is responsible for the full amount of recovery or repair loss,
minus any costs which are clearly attributable only to acts of other
individuals.
13. Consequential losses from trafficking in passwords: A defendant
who trafficked in passwords by using or maintaining a general
distribution system is responsible for all economic losses that resulted
from the use of the password after the date of his or her first general
distribution, minus any specific amounts which are clearly attributable
only to acts of other individuals. The term "passwords" includes any
form of personalized access identification, such as user codes or names.
14. If the defendant's acts harmed public interests not adequately
reflected in these guidelines, an upward departure may be warranted.
Examples include interference with common carriers, utilities, and
institutions (such as educational, governmental, or financial
institutions), whenever the defendant's conduct has affected or was
likely to affect public service or confidence".
* * *