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Computer Crime (2 of 2)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Computer Crime (2 of 2)
Box: 11
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
February 7, 1984
MEMORANDUM FOR D. EDWARD WILSON, JR.
FROM:
JOHN G. ROBERTS Jrd
SUBJECT:
Computer Security Information
The attached correspondence, together with a copy of my
interim reply, is submitted for reference to the appropriate
entities in the Office of Administration. It goes without
saying that we make no recommendation whatsoever concerning
the products described in the correspondence and
accompanying materials.
Many thanks.
THE WHITE HOUSE
WASHINGTON
February 7, 1984
Dear Ms. Skorupski:
Thank you for your January 26 letter to the President, and
the accompanying material concerning computer security
devices marketed by your company. In that letter you asked
that the material be directed to the person responsible for
computer security at the White House.
I have referred the material to the White House Office of
Administration. That office is responsible for procurement
matters, and the officials in that office will give the
material you submitted every appropriate consideration.
Thank you for the supportive comments in your letter.
Sincerely,
John G. Roberts
Associate Counsel to the President
Ms. Jean M. Skorupski
International Mobile Machines
Corporation
1755 Jefferson Davis Highway
Suite 505
Arlington, Virginia 22202
JGR:JGR:aea 2/7/84
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Subject:
Computer Security
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C - Comment/Recommendation
R - Direct Reply w/Copy
B - - Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
THE OF PRESIDENT 1
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF ADMINISTRATION
Washington, D.C. 20503
February 13, 1984
MEMORANDUM FOR THOMAS K. LEWIS, JR.
DIRECTOR
AUTOMATED SYSTEMS DIVISION
FROM:
D. GENERAL EDWARD COUNSEL WILSON, JR. R.D.C.H.,M.
SUBJECT:
Computer Security Information
Attached for your information is a January 26, 1984 letter from
Jean M. Skorupski, the Washington Representative of International
Mobile Machines Corporation concerning computer security. She
has asked that her information be sent to the person responsible
for computer security at the White House. You will note that
John G. Roberts, Associate Counsel to the President, has respond-
ed on behalf of the President; no additional correspondence is
required by OA.
This material is sent to you for your information only; as John
states in his cover memorandum to me, no recommendations are made
whatsoever concerning the products described in the correspond-
ence and accompanying material.
CC: John G. Roberts
THE WHITE HOUSE
WASHINGTON
April 16, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Computer Crime Legislation
H.R. 5112
Assistant Attorney General McConnell has asked for your
assistance in expediting OMB clearance of Justice's proposed
"Federal Computer Systems Protection Act of 1984." Accord-
ing to McConnell, Congressman Hughes plans to move computer
crime legislation through Congress this year, and will mark
up his own bill on April 26 unless the Administration
submits its bill before that date.
The Justice proposal (attached) would add new sections to
Title 18, making it a felony to knowingly devise or intend
to devise a scheme to defraud, obtain money by false pretenses,
or embezzle and to access or attempt to access certain
computers in connection with the scheme. The computers
covered by the bill are those owned by, contracted to, or
operated for the U.S. Government or a federally-insured
financial institution, or those operating in interstate
commerce. The bill authorizes a penalty of up to five years
imprisonment and/or a fine of up to $50,000 or double the
amount derived from the crime, whichever is greater. The
bill also proscribes damage to covered computers or computer
programs, and for a violation of this provision authorizes
the additional penalty of forfeiture of the computer used to
commit the crime. This additional penalty is designed to
deter the junior high school computer whizzes who break into
the Los Alamos computers and do such things as change the
targets on all our nuclear missles to various points in New
Jersey.
McConnell submitted the Justice proposal to OMB on March 16,
1984, so OMB can hardly be accused at this point of inordinate
delay in clearing the bill. Nonetheless, in light of the
imminence of action on this topic in Congress, McConnell
would like to have the package cleared by April 20. I have
reviewed Justice's proposed bill and have no objections.
The attached draft memorandum for Jim Murr notes that we
have no objection to the bill and also nudges OMB to expedite
clearance.
Attachment
THE WHITE HOUSE
WASHINGTON
April 16, 1984
MEMORANDUM FOR JAMES C. MURR
CHIEF, ECONOMICS-SCIENCE-GENERAL GOVERNMENT
BRANCH, OFFICE OF MANAGEMENT AND BUDGET
Orig. Bigned by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Computer Crime Legislation
H.R. 5112
Counsel's Office has reviewed the "Federal Computer Systems
Protection Act of 1984," submitted by the Department of
Justice for clearance on March 16. We have no objection to
the bill, the section-by-section analysis, or the transmittal
letter to the Speaker. We are advised by the Department of
Justice that imminent Congressional action on other, flawed
computer crime bills makes it highly desirable to submit an
Administration proposal by April 20, and we would accordingly
appreciate expediting clearance of the Justice proposal.
FFF: JGR:aea 4/16/84
cc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
April 16, 1984
MEMORANDUM FOR JAMES C. MURR
CHIEF, ECONOMICS-SCIENCE-GENERAL GOVERNMENT
BRANCH, OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Computer Crime Legislation
H.R. 5112
Counsel's Office has reviewed the "Federal Computer Systems
Protection Act of 1984," submitted by the Department of
Justice for clearance on March 16. We have no objection to
the bill, the section-by-section analysis, or the transmittal
letter to the Speaker. We are advised by the Department of
Justice that imminent Congressional action on other, flawed
computer crime bills makes it highly desirable to submit an
Administration proposal by April 20, and we would accordingly
appreciate expediting clearance of the Justice proposal.
FFF:JGR:aea 4/16/84
CC: FFFielding/JGRoberts/Subj/Chron
221976
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I INCOMING
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MI Mail Report
User Codes: (A)
(B)
Subject:
Computer Crime Legislation (C)
(H.R. 5112)
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R - - Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D : Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments: Mar28 84 Robert McConnell memo
to FFF also attached
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
of
U.S. Department of Justice
Office of Legislative Affairs
STREET
221976
Office of the Assistant Attorney General
Washington, D.C. 20530
11 APR1984
MEMORANDUM
TO: Fred F. Fielding
Counsel to the President
The White House
FROM: Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
SUBJECT: Computer Crime Legislation
To update my memorandum of March 28 (copy attached) on the
subject draft legislation, Chairman Hughes postponed until April
26 the Subcommittee mark-up of his computer crime bill, H.R.
5112. In doing so, his staff indicated the desire of the Sub-
committee to have our detailed views on computer crime legisla-
tion before proceeding. It was made clear, however, that Hughes
wants to move computer crime legislation this Congress and that
he cannot wait past April 26 for our input.
As there is SO much media and Congressional interest in
computer crime, and as we agree that legislation in this area
would be of some value, this could be a very good issue for the
Administration and for law enforcement if we can be cleared to
submit our draft bill to the Congress. It does not seem unreal-
istic to suggest April 20 as a target date for submission to the
Congress of a computer crime bill.
Your assistance in expediting Administration review of our
computer crime proposal will be deeply appreciated.
Attachment
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
March 28, 1984
MEMORANDUM
TO: Fred F. Fielding
Counsel to the President
The White House
FROM: Rober A. McConnell
Ass Attorney General
Office of Legislative Affairs
SUBJECT: Need for Administration Clearance of Anti-
Terrorism and Computer Crime Legislative
Proposals
Two proposed Administration legislative initiatives presently
under review within the Administration merit priority attention.
The anti-terrorism legislative package, which I know Lowell has
discussed with you, is the more urgent of the two. Since I know
that the demands on your time and attention are great I thought a
single memo with current concerns and status would be of assistance
to you. We need assistance!
The President announced in his State of the Union Address that
he would be submitting a comprehensive anti-terrorism legislative
package "shortly". Nine weeks have since elapsed and no legisla-
tive package has been submitted. In those weeks Congressional
interest has grown, concern over the Olympics has spread and such
concern raises the issue of terrorism, and legislative time for
action is getting alarmingly short.
I. Anti-Terrorism Legislation.
In summary, the anti-terrorism legislation is a five-part
package developed by the Departments of Justice and State which
would: (1) establish federal criminal jurisdiction over conspira-
cies to murder, maim or kidnap persons overseas where an act in
furtherence of the conspiracy is carried out in the United States;
(2) prohibit public or private technical assistance to foreign
terrorist groups or to foreign nations which support terrorism;
(3) authorize payment of rewards for information concerning domes-
tic or foreign terrorism; (4) strengthen federal kidnapping laws
consistent with the International Convention on Hostage-Taking;
and (5) strengthen federal aircraft piracy laws consistent with
the Montreal Convention concerning the safety of civil aviation.
The Departments of Justice and State have been in complete accord
on this legislation since early December.
The only issue which has held up submission of the anti-
terrorism legislative package to the Congress is CIA concern over
the conspiracy part of the package. CIA, joined by DOD, wants an
express exception for intelligence agency operations. Obviously,
this would be an incredible "red flag" as such an exception would
be widely perceived as an authorization for U. S. intelligence
agencies to conspire to murder, maim and kidnap persons overseas
as they see fit.
In an effort to accommodate the concerns of CIA, we have moved
the conspiracy provision of the package to the Neutrality Act chap-
ter of the Code; we have consistently interpreted the Neutrality
Act as not applying to properly authorized government activities.
Assistant Attorney General Steve Trott of the Criminal Division
has also provided CIA with a letter memorializing our interpreta-
tion of the conspiracy title as not applying to properly authorized
government activities. While we were initially led to believe that
either of these measures would satisfy CIA, the Agency subsequently
concluded that both steps were insufficient and that the only
solution is an express exception or deletion of the conspiracy
part from the package.
The Departments of Justice and State have endeavored to secure
a resolution of this single outstanding issue. Reportedly Director
Stockman has now also joined us in urging a resolution. He appar-
ently shares our concern that further delay will seriously jeopard-
ize any prospects for enactment of needed anti-terrorism measures
this year and our view that further delay may be embarrassing to
the President.
Indeed, we have been told that Stockman has written to the
President requesting a decision. I thought you should know of that
action if it is true. Despite these efforts, no resolution of the
issue has been forthcoming. A copy of our anti-terrorism package
is attached for reference purposes.
II. Computer Crime Legislation.
On March 16, 1984, after much discussion and a growing "Hill"
interest, the Department submitted to OMB a draft bill to strength-
en federal criminal laws governing computer-related crime. In
summary, our proposal would establish clear federal jurisdiction
over computer-related theft, fraud and sabotage to the extent that
such offenses involve use of facilities of interstate commerce,
- 2 -
federal computers, or computers of federally regulated financial
institutions. Our proposal would also establish misdemeanor sanc-
tions for "electronic trespasses" or unauthorized access, involving
federal computers or computers of federally regulated financial
institutions. Of course, we do not propose exclusive federal juris-
diction over any of these offenses. Rather, our jurisdiction
would be concurrent with that of state and local law enforcement.
As the result of media attention to the computer crime issue,
there is considerable support in the Congress for computer crime
legislation. The House has already approved a bill, H.R. 3075,
requiring a "study" of computer crime as it affects small business
and a similar Senate bill, S. 1920, is receiving consideration.
In addition Representative Nelson's bill H.R. 1092 has 118 co-
sponsors and the Congressman is pushing very hard with some effect.
Unfortunately, we feel Nelson's bill has serious defects which an
Administration bill could remedy. Moreover, Rep. Bill Hughes has
introduced a combination credit card fraud - computer crime bill,
H.R. 5112, and plans to process quickly his bill through his Sub-
committee on Crime and the House Committee on the Judiciary.
As conditions are present for enactment of computer crime
legislation this year, it is important that we have a cleared
Administration position available if the Administration is not to
be "left behind" and we are to influence the form of any computer
crime legislation which is approved. We need to move quickly.
It should be noted that our draft bill proposes no study of
computer crime and does not get into the computer security issues
which have been addressed by OMB and the Department of Commerce
with respect to encouraging those who operate computer systems to
take advantage of available technology designed to prevent un-
authorized access to computer systems. Rather, our bill is limited
to establishing federal criminal sanctions for particular types of
computer-related crime. Because of this relatively narrow focus,
it would seem that we could secure clearance of our proposal with-
out substantial delay. Attached for reference purposes is a copy
of our computer crime package.
While this issue is not as incredibly time sensitive as
terrorism I felt you needed to be aware of the situation. It does
have a time sensitivity and we could use your assistance in expe-
diting the process.
Attachments
- 3 -
ID #. 212552
CU
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Robert a. me Connell
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: a legislation proposal entitled the
Federal Computer Systems Protection
Act of 1984
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
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Date
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(Staff Name)
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A Answered
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R. . Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F - Furnish Fact Sheet
X . Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
16 MAR1984
212552 lee
Honorable David A. Stockman
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
Enclosed are copies of a proposed communication to be transmitted
to the Congress relative to: a legislative proposal entitled the
"Federal Computer Systems Protection Act of 1984."
Please advise this office as to the relationship of the proposed commu-
nication to the Program of the President.
Sincerely,
(Signed) Robert A. McConnell
Robert A. McConnell
Assistant Attorney General
Enclosures
KW 18 WD 31
To coordinate clearance contact Maria Walicki, 633-3916, OLA.
OLA-6A
DOJ
REV 12-23-76
OF
Office of the Attorney General
PRIO
SEQUITUR
Washington, D. C. 20530
DOMINA
JUSTITIA
7
Speaker of the House
House of Representatives
Washington, DC 20515
Dear Mr. Speaker:
Enclosed for your consideration and appropriate
reference is the Federal Computer Systems Protection Act of
1984, a legislative proposal that would amend the United
States code to proscribe computer fraud and other crimes
involving computers.
Computer related crime is a growing problem in the
government and private sector. The prosecution of persons
engaged in computer related crime is difficult under current
federal criminal statutes. Any enforcement action in
response to criminal conduct indirectly or directly related
to computers must rely upon a statutory restriction dealing
with some other federal offense. Even if an approach is
devised that apparently covers the illegal acts, it still
must be treated on an untested, untried basis of prosecution
in the federal trial courts. The federal courts, the law
enforcement community, those who own and operate computers,
as well as those who may be tempted to commit crimes using
them, require a clear statement of definition and proscribed
action.
This act is designed to fill a potentially serious gap
in existing federal law by providing a specific sanction for
computer related crime. The act makes it a felony to
knowingly devise or intend to devise a scheme or artifice to
defraud, or for obtaining money or property by false or
fraudulent pretences or representations, or to embezzle,
steal, or convert the property of another, and to access or
attempt to access certain computers for these purposes.
The act also proscribes the knowing and unauthorized
damaging or destroying of a computer, computer program, or
data contained in a computer. This applies to computers
owned by, under contract to, or operated for or on behalf of
the United States Government, a financial institution or
those operating in or using a facility of interstate
commerce.
- 2 -
Finally, the act specifies that whoever intentially and
without authorization accesses a computer owned by, under
contract to, or operated for or on behalf of the United
States Government or a financial institution, shall be guilty
of a misdemeanor and shall be fined not more than $25,000 or
imprisoned for not more than one year, or both.
Enclosed for your review is a section-by-section
analysis of the proposal.
The Office of Management and Budget has advised that
there is no objection from the standpoint of the
Administration's program to the submission of this
legislation to the Congress and that its enactment would be
in accord with the program of the President.
Sincerely,
William French Smith
Attorney General
Enclosures
Proposed Bill - DFG 11/10/83
A BILL
To amend Title 18, United States Code, to make a crime the
use, for fraudulent or other illegal purposes, of any computer
owned or operated by the United States, certain financial
institutions, and entities affecting interstate commerce.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this Act
may be cited as the "Federal Computer Systems Protection Act of
1984
SEC. 2. (a) Chapter 47 of Title 18, United States Code, is
amended by adding at the end thereof the following new section:
"S 1028. Computer fraud and abuse.
BY (a) Whoever having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by false or fraudulent pretenses, representations,
or promises, or to embezzle, steal, or convert to his use or
the use of another, property not his own, for the purpose of
executing such scheme or artifice or embezzlement, theft or
conversion or attempting to do so, knowingly accesses or
attempts to access a computer, shall, if the computer --
(1) is owned by, under contract to, or operated
for or on behalf of --
# (A) the United States Government; or
. (B) a financial institution, or
- 2 -
# (2) operates in, or uses a facility of,
interstate commerce,
be fined not more than two times the amount of the gain
directly or indirectly derived from the offense or $50,000,
whichever is higher, or imprisoned not more than five years,
or both.
. (b) Whoever knowingly and willfully without
authorization damages, destroys or attempts to damage or
destroy a computer described in subsection (a) (1) and (2) or
knowingly and willfully without authorization damages or
attempts to damage any computer program, or data contained
in such computer shall be fined not more than $50,000 or
imprisoned not more than five years, or both.
B (c) Whoever intentionally and without authorization
accesses a computer as defined in (a) (1), or a computer
system or computer network including such computer, shall be
guilty of a misdemeanor and shall be fined not more than
$25,000 or imprisoned for not more than one year, or both.
" (d) Whoever violates any provision of paragraph (a),
(b) or (c) shall forfeit to the United States any interest
acquired or maintained in any computer and computer
software, which has been used to commit the violation. Upon
conviction under this section, the court shall authorize the
Attorney General to seize all property or other interest
declared forfeited under this section upon such terms and
conditions as the court shall deem proper. If a property
right or other interest is not exercisable or transferable
- 3 -
for value by the United States, it shall expire, and shall
not revert to the convicted violator. The United States
shall dispose of all such property as soon as commercially
feasible, making due provision for the rights of innocent
persons.
" (e) DEFINITIONS. -- For the purpose of this section
the term --
" (1) 'computer' means an electronic, magnetic,
electrochemical, or other high speed data processing
device performing logical, arithmetic, or storage
functions, and includes any data storage facility or
communications facility directly related to or
operating in conjunction with such device;
= (2) 'computer system' means a set of related
connected or unconnected computers, computer equipment,
devices and software;
. (3) 'computer network' means two or more
interconnected computers, computer terminals or
computer systems
- (4) 'financial institution' means --
" (A) a bank with deposits insured by the
Federal Deposit Insurance Corporation;
" (B) the Federal Reserve or a member of the
Federal Reserve including any Federal Reserve
bank;
- 4 -
"
(C) an institution with accounts insured by
the Federal Savings and Loan Corporation;
.
(D) a credit union with accounts insured by
the National Credit Union Administration;
@
(E) a member of the Federal Home Loan Bank
system and any home loan bank;
. (F) a member or business insured by the
Securities Investor Protection Corporation; and
01 (G) a broker-dealer registered with the
Securities and Exchange Commission pursuant to
Section 15 of the Securities and Exchange Act of
1934;
" (5) 'property' includes, but is not limited to,
financial instruments, information, including
electronically processed or produced data, and computer
program and computer software in either machine or
human readable form, computer services and any other
tangible or intangible item of value;
# (6) 'financial instrument' means any check,
draft money order, certificate of deposit, letter of
credit, bill of exchange, credit card, debit card or
marketable security, or any electronic data processing
representation thereof;
. (7) 'computer program' means an instruction or
statement or a series of instructions or statements, in
a form acceptable to a computer, which permits the
- 5 -
functioning of a computer system in a manner designed
to provide appropriate products from such computer
system;
#
(8) 'computer software' means a set of computer
programs, procedures and associated documentation
concerned with the operation of a computer system;
" (9) 'computer services' includes but is not
limited to computer time, data processing, and storage
functions;
- (10) 'United States Government' includes a branch
or agency thereof;
@ "(11) 'access' means to instruct, communicate
with, store data in, retrieve data from, or otherwise
make use of any resources of a computer, computer
system, or computer network; and
SEC. 3. The table of sections of Chapter 47 of Title 18,
United States Code, is amended by adding at the end thereof the
following:
"1028. Computer fraud and abuse.'
SECTION-BY-SECTION ANALYSIS
Section one of the bill contains its short title: The
Federal Computer Systems Protection Act of 1984.
Section two of the bill adds a new section 1028 to title 18
of the United States Code proscribing computer fraud and other
crimes involving computers. The proposed new section contains
five subsections, (a)-(e).
Proposed subsection (a) makes it a felony to knowingly
devise or intend to devise a scheme or artifice to defraud, or
for obtaining money or property by false or fraudulent pretenses
or representations, or to embezzle, steal or convert the property
of another, and to access or attempt to access certain computers
for these purposes. The term "access" is defined in proposed
subsection 1028 (e) (11) and means to instruct, communicate with,
store data in, retrieve data from, or otherwise make use of any
resources of a computer, a computer system, or computer network.
Subsection (a) is designed to plug a potentially serious gap in
existing federal law by providing a specific sanction for
computer related crime. Presently there is no federal law
directly related to such an offense. When computers are used in
federal crimes such as an interstate fraud scheme, any federal
response must be based on a theory of prosecution that can be
made to fit the facts of the case. Since computers open up
entire new areas for crimes the facts of a particular case may
not always fit. For example, computers are repositories of
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tremendous amounts of valuable information and data but placing a
value on this material should it be stolen is often difficult or
impossible.
The proposed subsection is drafted in language that is taken
from the mail fraud (18 U.S.C. 1341) and wire fraud (18 U.S.C.
1343) statutes to the maximum extent possible. It is intended
that the extensive body of law that has been developed interpret-
ing these statutes apply to the new subsection 1028(a).
The penalty for a violation of subsection 1028(a) can extend
to five years' imprisonment and a fine of $50,000 or double the
amount derived from the offense, whichever is greater.
The subsection only applies if the computer accessed or to
which access is attempted is in one of three categories. They
are computers owned by, under contract to, or operated for or on
behalf of the United States government; computers owned by, under
contract to, or operated for or operated for or on behalf of a
"financial institution;" and computers operating in or using a
facility of interstate commerce. The term "financial institu-
tion" is defined in subsection 1028(e)(4) and includes all banks
insured by the Federal Deposit Insurance Corporation, Federal
Reserve member banks, federally insured savings and loan associa-
tions and credit unions, and certain federally insured or
registered brokerage firms.
Coverage of all computers operating in or using a facility
of interstate commerce such as, for example, telephone lines
if used for an interstate call, extends federal jurisdiction
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over a very large number of computers. Such jurisdiction would
be concurrent with that of the states although subsection 1028(a)
is deliberately drafted to allow the option of federal investiga-
tion and prosecution in appropriate cases such as where state
laws are inadequate or where investigation in several states is
required.
Subsection 1028(b) sets out another felony offense involving
computers. It proscribes the knowing and unauthorized damaging
or destroying of a computer, computer program, or data contained
in a computer. The computers covered are those in the three
categories listed in subsection 1028(a). The conduct aimed at
here would include the physical destruction of or damage to a
computer itself (the hardware), and damaging a computer program
or data in the computer. "Computer program" is a defined term in
subsection 1028 (e) and means an instruction or statement or a
series of instructions or statements, in a form acceptable to a
computer, which permits the functioning of a computer system in a
manner designed to provide appropriate products from such
computer system. The penalty for a violation of the subsection
extends to five years' imprisonment and a $50,000 fine. Attempts
to violate the subsection are also covered.
Subsection 1028(c) would make it a misdemeanor punishable by
up to one year's imprisonment and a $25,000 fine to intentionally
and without authority access a computer owned by, under contract
to or operated for or on behalf of the United States or a
financial institution, or a computer system or computer network
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including such a computer. The term "computer system" 1s defined
in subsection 1028(e). It means a set of related connected or
unconnected computers, computer equipment, devices and software.
The term "computer network" 1s also defined in subsection
1028(e). It means two or more interconnected computers, computer
terminals, or computer systems.
The conduct proscribed in subsection 1028(c) is akin to a
trespass onto someone else's property. A person who rummages
through the information contained in a computer, computer system,
or computer network -- for example by accessing the computer
system or network through his home computer -- causes the same
sort of harm as an intruder who clandestinely enters a person's
home to look through the contents of the owner's personal records
and documents. Subsection (c) applies whether or not anything of
value, such as information, 1s taken.
Subsection 1028(d) provides for the forfeiture to the United
States of the interest acquired or maintained in any computer or
computer software used in the offense by a person convicted of a
violation of subsection (a), (b), or (c). A forfeiture provision
provides for significant deterrence to potential violators above
the threat of a prison sentence and fine. Some courts can be
expected to be reluctant to give prison sentences or meaningful
fines in some cases involving computers, particularly those in
which the defendant has merely made an unauthorized access to a
computer system or network by means of his home computer. The
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possibility that such a person might have to forfeit his expen-
sive home computer should dissuade him from such unauthorized
rummaging.
The subsection sets out a criminal forfeiture and the
intention of the government to seek a forfeiture, which is left
to the discretion of the prosecutor, must be alleged in the
indictment or information. If the defendant is found guilty of
the offense, a special verdict must be returned concerning the
forfeiture allegations. At that point the government could seize
the computer or the defendant's interest in the computer soft-
ware. Prior to this time the court may enter a restraining order
or require the defendant to post a bond to guard against
unauthorized disposition of the forfeitable property. Although
usually the computer itself would be forfeited, the subsection
also refers to "computer software" to cover the situation where a
person has an interest in a computer program that has been
developed and sold to facilitate a fraud scheme or unauthorized
access to a computer system or network. "Computer software" 1s
defined in subsection 1028(e) as a set of computer programs,
procedures and associated documentation concerned with the
operation of a computer system. Of course subsection (d) only
applies to the defendant's interest in the computer or software.
If a person used his employer's computer in violation of
subsection (a), (b), or (c) he would have no forfeitable interest
in it.
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Subsection 1028(e) sets out definitions that apply to the
section, most of which have been discussed in connection with the
other subsections. The key term "computer" means an electronic,
magnetic, electrochemical or other high speed data processing
device performing logical, arithemetic, or storage functions, and
includes any data storage facility or communications facility
directly related to or operating in conjunction with such device.
It includes home as well as business computers.
"Property", a term used in subsection (a) to describe the
object of a computer fraud or theft scheme, is defined to speci-
fically include information and "computer services". In turn
"computer services" is defined to include computer time, data
processing and data storage facilities. Thus, a person who with
criminal intent used a computer to access another computer, a
computer system or computer network, and used the other computer,
computer system or network to perform calculations or process or
store data would be guilty of a violation of subsection 1028(a).
Similarly, a person who with criminal intent used a computer to
access another computer, computer system, or network in a way
that prevented access by legitimate users would also violate
subsection 1028(a) because he has taken computer time. These
situations are to be contrasted with the simple unauthorized
access provisions of 1028(c) which would apply if the accessed
computer, system, or network was not used for calculations or
storage and 1f the access did not prevent simultaneous access by
a legitimate user.
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Section three of the bill amends the table of sections of
Chapter 47 of title 18 to reflect the addition of the new
section 1028 concerning computer fraud and abuse.