Last week President Obama announced his proposal for updates to US cybercrime law. While I am not a lawyer, I have spent a significant amount of time poring over the legal documents to extract their meaning and provide my comments.
The proposed legislation is quite long and detailed, so I will begin with the changes that will impact law enforcement. These changes relate to what items are criminal and the penalties the courts may impose for breaking the law.
In my second post I cover the proposed national Data Breach Notification Act.
- The Racketeer Influenced and Corrupt Organizations (RICO) Act would be updated to include organized computer criminals. This law was originally designed to target mafia-like crime syndicates and would now include their electronic equivalents.
- The Computer Fraud and Abuse Act (CFAA) would be modified with new restrictions for judges during sentencing. Attacks against critical infrastructure would have a mandatory minimum sentence of three years.
- Cyberattackers targeting critical infrastructure would not be eligible for probation or concurrent sentencing (unless it is the same crime) or eligible for a reduction of their sentences for multiple counts of the offense.
- Maximum sentences would be changed from ten years to 20 for attacking US government systems related to defense, energy or foreign relations.
- Maximum sentences would be changed from one year to three for unauthorized access to records or systems related to financial services, government systems or foreign/interstate communications. They would change from five years to ten if the purpose is private gain or commercial advantage or if the value of the information exceeds $5000.
- Maximum sentences would be reduced from five years to one for unauthorized access to non-public government computers.
- Maximum of 20 years for unauthorized access or exceeding authorization to obtain more than $5000 in a year's time.
- Maximum of 20 years for someone who "knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer" resulting in more than $5000 in damages, tampering with medical systems, causing physical injury, causing a threat to public health and safety, interfering with systems related to defense, justice or national security, or ten or more computers in a one year period.
- A maximum of life imprisonment for incidents that result in someone's death.
- Maximum of ten years for unauthorized access causing reckless damages.
- Maximum of one year in prison for unauthorized access causing damages.
- Maximum of ten years for "knowingly and with intent to defraud [trafficking] in any password or similar information through which a computer may be accessed without authorization." This provision previously applied only to US government systems.
- Maximum of ten years for extortion using a threat to attack/expose flaws in security.
- A long list of changes related to the forfeiture of profits and assets in any way related to the aforementioned criminal activity.
The raising of maximum penalties gives American judges more flexibility and sends a very clear message to cybercriminals. However, the requirement for a three year minimum sentence for attacking critical infrastructure raises questions.
There are many shades of grey when it comes to unauthorized access to sensitive systems and mandatory minimums do not account for the edge cases that a judge can take into account.
The adjustments to the RICO statute are a welcome change and by including organized cybercrime provide new tools for law enforcement to treat electronic crimes just like any other.
The addition of this statement:
"knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer"
appears to directly address today's malware threat. Facing up to 20 years for what many consider to be mischief sets the record straight. Producing and spreading malware is a serious crime, and under this proposal, if you participate you could face serious penalties.