18
USC §1028: Fraud and related activity in connection with
identification documents, authentication features, and
information
(a)
Whoever, in a circumstance described in subsection (c)
of this section
(1)
knowingly and without lawful authority produces an identification
document, authentication feature, or a false identification
document;
(2) knowingly transfers an identification document, authentication
feature, or a false identification document knowing that
such document or feature was stolen or produced without
lawful authority;
(3) knowingly possesses with intent to use unlawfully
or transfer unlawfully five or more identification documents
(other than those issued lawfully for the use of the possessor),
authentication features, or false identification documents;
(4) knowingly possesses an identification document (other
than one issued lawfully for the use of the possessor),
authentication feature, or a false identification document,
with the intent such document or feature be used to defraud
the United States;
(5) knowingly produces, transfers, or possesses a document
- making implement or authentication feature with the
intent such document - making implement or authentication
feature will be used in the production of a false identification
document or another document - making implement or authentication
feature which will be so used;
(6) knowingly possesses an identification document or
authentication feature that is or appears to be an identification
document or authentication feature of the United States
which is stolen or produced without lawful authority knowing
that such document or feature was stolen or produced without
such authority;
(7) knowingly transfers or uses, without lawful authority,
a means of identification of another person with the intent
to commit, or to aid or abet, any unlawful activity that
constitutes a violation of Federal law, or that constitutes
a felony under any applicable State or local law; or
(8) knowingly traffics in false authentication features
for use in false identification documents, document -
making implements, or means of identification;
shall
be punished as provided in subsection (b) of this section.
(b)
The punishment for an offense under subsection (a) of
this section is
(1)
except as provided in paragraphs (3) and (4), a fine under
this title or imprisonment for not more than 15 years,
or both, if the offense is
(A)
the production or transfer of an identification document,
authentication feature, or false identification document
that is or appears to be
(i)
an identification document or authentication feature issued
by or under the authority of the United States; or
(ii) a birth certificate, or a driver's license or personal
identification card;
(B)
the production or transfer of more than five identification
documents, authentication features, or false identification
documents;
(C) an offense under paragraph (5) of such subsection;
or
(D) an offense under paragraph (7) of such subsection
that involves the transfer or use of 1 or more means of
identification if, as a result of the offense, any individual
committing the offense obtains anything of value aggregating
$1,000 or more during any 1 - year period;
(2)
except as provided in paragraphs (3) and (4), a fine under
this title or imprisonment for not more than three years,
or both, if the offense is
(A)
any other production, transfer, or use of a means of identification,
an identification document, authentication feature, or
a false identification document; or
(B) an offense under paragraph (3) or (7) of such subsection;
(3)
a fine under this title or imprisonment for not more than
20 years, or both, if the offense is committed
(A)
to facilitate a drug trafficking crime (as defined in
section 929(a)(2));
(B) in connection with a crime of violence (as defined
in section 924(c)(3)); or
(C) after a prior conviction under this section becomes
final;
(4)
a fine under this title and imprisonment for not
more than 25 years, if the offense is committed to facilitate
an act of international terrorism (as defined in section
2331(1) of this title);
(5) in the case of any offense under subsection (a), forfeiture
to the United States of any personal property used or
intended to be used to commit the offense; and
(6) a fine under this title or imprisonment for not more
than one year, or both, in any other case.
(c)
The circumstance referred to in subsection (a) of this
section is that
(1)
the identification document, authentication feature, or
false identification document is or appears to be issued
by or under the authority of the United States or the
document - making implement is designed or suited for
making such an identification document, authentication
feature, or false identification document;
(2) the offense is an offense under subsection (a) (4)
of this section; or
(3) either
(A)
the production, transfer, possession, or use prohibited
by this section is in or affects interstate or foreign
commerce, including the transfer of a document by electronic
means; or
(B) the means of identification, identification document,
false identification document, or document - making implement
is transported in the mail in the course of the production,
transfer, possession, or use prohibited by this section.
(d)
In this section
(1)
the term "authentication feature" means any
hologram, watermark, certification, symbol, code, image,
sequence of numbers or letters, or other feature that
either individually or in combination with another feature
is used by the issuing authority on an identification
document, document - making implement, or means of identification
to determine if the document is counterfeit, altered,
or otherwise falsified;
(2) the term "document - making implement" means
any implement, impression, template, computer file, computer
disc, electronic device, or computer hardware or software,
that is specifically configured or primarily used for
making an identification document, a false identification
document, or another document - making implement;
(3) the term "identification document" means
a document made or issued by or under the authority of
the United States Government, a State, political subdivision
of a State, a foreign government, political subdivision
of a foreign government, an international governmental
or an international quasi - governmental organization
which, when completed with information concerning a particular
individual, is of a type intended or commonly accepted
for the purpose of identification of individuals;
(4) the term "false identification document"
means a document of a type intended or commonly accepted
for the purposes of identification of individuals that
(A)
is not issued by or under the authority of a governmental
entity or was issued under the authority of a governmental
entity but was subsequently altered for purposes of deceit;
and
(B) appears to be issued by or under the authority of
the United States Government, a State, a political subdivision
of a State, a foreign government, a political subdivision
of a foreign government, or an international governmental
or quasi - governmental organization;
(5)
the term "false authentication feature" means
an authentication feature that
(A)
is genuine in origin, but, without the authorization of
the issuing authority, has been tampered with or altered
for purposes of deceit;
(B) is genuine, but has been distributed, or is intended
for distribution, without the authorization of the issuing
authority and not in connection with a lawfully made identification
document, document - making implement, or means of identification
to which such authentication feature is intended to be
affixed or embedded by the respective issuing authority;
or
(C) appears to be genuine, but is not;
(6)
the term "issuing authority"
(A)
means any governmental entity or agency that is authorized
to issue identification documents, means of identification,
or authentication features; and
(B) includes the United States Government, a State, a
political subdivision of a State, a foreign government,
a political subdivision of a foreign government, or an
international government or quasi - governmental organization;
(7)
the term "means of identification" means any
name or number that may be used, alone or in conjunction
with any other information, to identify a specific individual,
including any
(A)
name, social security number, date of birth, official
State or government issued driver's license or identification
number, alien registration number, government passport
number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice
print, retina or iris image, or other unique physical
representation;
(C) unique electronic identification number, address,
or routing code; or
(D) telecommunication identifying information or access
device (as defined in section 1029(e));
(8)
the term "personal identification card" means
an identification document issued by a State or local
government solely for the purpose of identification;
(9) the term "produce" includes alter, authenticate,
or assemble;
(10) the term "transfer" includes selecting
an identification document, false identification document,
or document - making implement and placing or directing
the placement of such identification document, false identification
document, or document - making implement on an online
location where it is available to others;
(11) the term "State" includes any State of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, and any other commonwealth, possession,
or territory of the United States; and
(12) the term "traffic" means
(A)
to transport, transfer, or otherwise dispose of, to another,
as consideration for anything of value; or
(B) to make or obtain control of with intent to so transport,
transfer, or otherwise dispose of.
(e)
This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of
a law enforcement agency of the United States, a State,
or a political subdivision of a State, or of an intelligence
agency of the United States, or any activity authorized
under chapter 224 of this title.
(f) Attempt and conspiracy. Any person who attempts or
conspires to commit any offense under this section shall
be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of
the attempt or conspiracy.
(g) Forfeiture procedures. The forfeiture of property
under this section, including any seizure and disposition
of the property and any related judicial or administrative
proceeding, shall be governed by the provisions of section
413 (other than subsection (d) of that section) of the
Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. 853).
(h) Forfeiture; disposition. In the circumstance in which
any person is convicted of a violation of subsection (a),
the court shall order, in addition to the penalty prescribed,
the forfeiture and destruction or other disposition of
all illicit authentication features, identification documents,
document - making implements, or means of identification.
(i) Rule of construction. For purpose of subsection (a)(7),
a single identification document or false identification
document that contains 1 or more means of identification
shall be construed to be 1 means of identification.
18
USC §1028A: Treatment of identity theft mitigation
(a)
DEFINITIONS.—As used in this section—
(1) the term ‘business entity’ means any corporation,
trust, partnership, sole proprietorship, or unincorporated
association, including any financial service provider,
financial information repository, creditor (as that term
is defined in section 103 of the Truth in Lending Act
(15 U.S.C. 1602)), telecommunications, utilities, or other
service provider;
(2) the term ‘consumer’ means an individual;
(3) the term ‘financial information’ means
information identifiable as relating to an individual
consumer that concerns the amount and conditions of the
assets, liabilities, or credit of the consumer, including—
(A) account numbers and balances;
(B) nonpublic personal information, as that term is
defined in section 509 of the 11 Gramm-Leach-Bliley
Act (15 U.S.C. 6809); and
(C) codes, passwords, social security numbers, tax identification
numbers, State 14 identifier numbers issued by a State
department of licensing, and other information used
for the purpose of account access or transaction initiation;
(4) the term ‘financial information repository’
means a person engaged in the business of providing services
to consumers who have a credit, deposit, trust, stock,
or other financial services account or relationship with
that person;
(5) the term ‘identity theft’ means a violation
of section 1028 or any other similar provision of applicable
Federal or State law;
(6) the term ‘means of identification’ has
the same meaning given the term in section 1028;
(7) the term ‘victim’ means a consumer whose
means of identification or financial information has been
used or transferred (or has been alleged to have been
used or transferred) without the authority of that consumer
with the intent to commit, or with the intent to aid or
abet, an identity theft; and
(8) the terms not defined in this section or otherwise
defined in section 3(s) of the Federal Deposit Insurance
Act (12 U.S.C. 1813(s)) shall have the meaning given to
them in section 1(b) of the International Banking Act
of 1978 (12 U.S.C. 16 3101).
(b) INFORMATION
AVAILABLE TO VICTIMS.—
(1) IN GENERAL.—A business entity that
has provided credit, provided, for consideration, products,
goods, or services, accepted payment, otherwise entered
into a commercial transaction for consideration with a
person that has made unauthorized use of the means of
identification of the victim, or possesses information
relating to such transaction, shall, not later than 20
days after the receipt of a written request by the victim,
meeting the requirements of subsection (c), provide, without
charge, a copy of all application and business transaction
in- formation related to the transaction being alleged
as an identity theft to—
(A) the victim;
(B) any Federal, State, or local governing law enforcement
agency or officer specified by the victim in such a
request; or
(C) any law enforcement agency investigating the identity
theft and authorized by the victim to take receipt of
records provided under this section.
(2) RULE OF CONSTRUCTION.—
(A) IN GENERAL.—No provision of Federal
or State law (except a law involving the non-disclosure
of information related to a pending Federal criminal
investigation) prohibiting the disclosure of financial
information by a business entity to third parties shall
be used to deny disclosure of information to the victim
under this section.
(B) LIMITATION.—Except as provided in subparagraph
(A), nothing in this section per that the business entity
is otherwise prohibited from disclosing under any other
applicable provision of Federal or State law.
(c) VERIFICATION OF IDENTITY AND CLAIM.—Unless
a business entity, at its discretion, is otherwise able
to verify the identity of a victim making a request under
subsection (b)(1), the victim shall provide to the business
entity—
(1) as proof of positive identification, at
the election of the business entity—
(A) the presentation of a government- issued
identification card;
(B) personally identifying information of the same type
as was provided to the business entity by the unauthorized
person; or
(C) personally identifying information that the business
entity typically requests from new applicants or for
new transactions at the time of the victim’s request
for information; and
(2) as proof of a claim of identity theft, at the election
of the business entity—
(A) a copy of a police report evidencing
the claim of the victim of identity theft;
(B) a properly completed copy of a standardized affidavit
of identity theft developed and made available by the
Federal Trade Commission; or
(C) any properly completed affidavit of fact that is
acceptable to the business entity for that purpose.
(d) VERIFICATION STANDARD.—Prior to releasing records
pursuant to subsection (b), a business entity shall take
reasonable steps to verify the identity of the alleged
victim requesting such records.
(e) LIMITATION ON LIABILITY.—No business entity
may be held liable for a disclosure, made in good faith
and reasonable judgment pursuant to, and in compliance
with, this section, where such disclosure is made—
(1) for the purpose of detection, investigation,
or prosecution of identity theft; or (2) to assist a victim
in recovery of fines, restitution, rehabilitation of the
credit of the victim, or such other relief as may be appropriate.
(f) AUTHORITY TO DECLINE TO PROVIDE INFORMATION.—A
business entity may decline to provide information under
subsection (b) if, in the exercise of good faith and reasonable
judgment, the business entity determines that—
(1) this section does not require disclosure
of the information;
(2) the request for the information is based on a misrepresentation
of fact by the victim relevant to the request for information;
or
(3) the information requested is Internet navigational
data or similar information about a person’s visit
to a website or online service.
(g)
NO NEW RECORDKEEPING OBLIGATION.— Nothing in this
section creates an obligation on the part of a business
entity to obtain, retain, or maintain information or records
that are not otherwise required to be obtained, retained,
or maintained in the ordinary course of its business or
under other applicable law.
18
USC §1029: Fraud and related activity in connection with
access devices
(a)
Whoever
(1)
knowingly and with intent to defraud produces, uses, or
traffics in one or more counterfeit access devices;
(2) knowingly and with intent to defraud traffics in or
uses one or more unauthorized access devices during any
one - year period, and by such conduct obtains anything
of value aggregating $1,000 or more during that period;
(3) knowingly and with intent to defraud possesses fifteen
or more devices which are counterfeit or unauthorized
access devices;
(4) knowingly, and with intent to defraud, produces, traffics
in, has control or custody of, or possesses device - making
equipment;
(5) knowingly and with intent to defraud effects transactions,
with 1 or more access devices issued to another person
or persons, to receive payment or any other thing of value
during any 1 - year period the aggregate value of which
is equal to or greater than $1,000;
(6) without the authorization of the issuer of the access
device, knowingly and with intent to defraud solicits
a person for the purpose of
(A)
offering an access device; or
(B) selling information regarding or an application to
obtain an access device;
(7)
knowingly and with intent to defraud uses, produces, traffics
in, has control or custody of, or possesses a telecommunications
instrument that has been modified or altered to obtain
unauthorized use of telecommunications services;
(8) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a
scanning receiver;
(9) knowingly uses, produces, traffics in, has control
or custody of, or possesses hardware or software, knowing
it has been configured to insert or modify telecommunication
identifying information associated with or contained in
a telecommunications instrument so that such instrument
may be used to obtain telecommunications service without
authorization; or
(10) without the authorization of the credit card system
member or its agent, knowingly and with intent to defraud
causes or arranges for another person to present to the
member or its agent, for payment, 1 or more evidences
or records of transactions made by an access device;
shall,
if the offense affects interstate or foreign commerce,
be punished as provided in subsection (c) of this section.
(b)
(1)
Whoever attempts to commit an offense under subsection
(a) of this section shall be subject to the same penalties
as those prescribed for the offense attempted.
(2) Whoever is a party to a conspiracy of two or more
persons to commit an offense under subsection (a) of this
section, if any of the parties engages in any conduct
in furtherance of such offense, shall be fined an amount
not greater than the amount provided as the maximum fine
for such offense under subsection (c) of this section
or imprisoned not longer than one - half the period provided
as the maximum imprisonment for such offense under subsection
(c) of this section, or both.
(c)
Penalties.
(1)
Generally. The punishment for an offense under subsection
(a) of this section is
(A)
in the case of an offense that does not occur after a
conviction for another offense under this section
(i)
if the offense is under paragraph (1), (2), (3), (6),
(7), or (10) of subsection (a), a fine under this title
or imprisonment for not more than 10 years, or both; and
(ii) if the offense is under paragraph (4), (5), (8),
or (9) of subsection (a), a fine under this title or imprisonment
for not more than 15 years, or both;
(B)
in the case of an offense that occurs after a conviction
for another offense under this section, a fine under this
title or imprisonment for not more than 20 years, or both;
and
(C) in either case, forfeiture to the United States of
any personal property used or intended to be used to commit
the offense.
(2)
Forfeiture procedure. The forfeiture of property under
this section, including any seizure and disposition of
the property and any related administrative and judicial
proceeding, shall be governed by section 413 of the Controlled
Substances Act, except for subsection (d) of that section.
(d)
The United States Secret Service shall, in addition to
any other agency having such authority, have the authority
to investigate offenses under this section. Such authority
of the United States Secret Service shall be exercised
in accordance with an agreement which shall be entered
into by the Secretary of the Treasury and the Attorney
General.
(e) As used in this section
(1)
the term "access device" means any card, plate,
code, account number, electronic serial number, mobile
identification number, personal identification number,
or other telecommunications service, equipment, or instrument
identifier, or other means of account access that can
be used, alone or in conjunction with another access device,
to obtain money, goods, services, or any other thing of
value, or that can be used to initiate a transfer of funds
(other than a transfer originated solely by paper instrument);
(2) the term "counterfeit access device" means
any access device that is counterfeit, fictitious, altered,
or forged, or an identifiable component of an access device
or a counterfeit access device;
(3) the term "unauthorized access device" means
any access device that is lost, stolen, expired, revoked,
canceled, or obtained with intent to defraud;
(4) the term "produce" includes design, alter,
authenticate, duplicate, or assemble;
(5) the term "traffic" means transfer, or otherwise
dispose of, to another, or obtain control of with intent
to transfer or dispose of;
(6) the term "device - making equipment" means
any equipment, mechanism, or impression designed or primarily
used for making an access device or a counterfeit access
device;
(7) The term "credit card system member" means
a financial institution or other entity that is a member
of a credit card system, including an entity, whether
affiliated with or identical to the credit card issuer,
that is the sole member of a credit card system;
(8) the term "scanning receiver" means a device
or apparatus that can be used to intercept a wire or electronic
communication in violation of chapter 119 or to intercept
an electronic serial number, mobile identification number,
or other identifier of any telecommunications service,
equipment, or instrument;
(9) the term "telecommunications service" has
the meaning given such term in section 3 of title I of
the Communications Act of 1934 (47 U.S.C. 153);
(10) the term "facilities - based carrier" means
an entity that owns communications transmission facilities,
is responsible for the operation and maintenance of those
facilities, and holds an operating license issued by the
Federal Communications Commission under the authority
of title III of the Communications Act of 1934; and
(11) the term "telecommunication identifying information"
means electronic serial number or any other number or
signal that identifies a specific telecommunications instrument
or account, or a specific communication transmitted from
a telecommunications instrument.
(f)
This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of
a law enforcement agency of the United States, a State,
or a political subdivision of a State, or of an intelligence
agency of the United States, or any activity authorized
under chapter 224 of this title. For purposes of this
subsection, the term "State" includes a State
of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
(g)
(1)
It is not a violation of subsection (a)(9) for an officer,
employee, or agent of, or a person engaged in business
with, a facilities - based carrier, to engage in conduct
(other than trafficking) otherwise prohibited by that
subsection for the purpose of protecting the property
or legal rights of that carrier, unless such conduct is
for the purpose of obtaining telecommunications service
provided by another facilities - based carrier without
the authorization of such carrier.
(2) In a prosecution for a violation of subsection (a)(9),
(other than a violation consisting of producing or trafficking)
it is an affirmative defense (which the defendant must
establish by a preponderance of the evidence) that the
conduct charged was engaged in for research or development
in connection with a lawful purpose.
(h)
Any person who, outside the jurisdiction of the United
States, engages in any act that, if committed within the
jurisdiction of the United States, would constitute an
offense under subsection (a) or (b) of this section, shall
be subject to the fines, penalties, imprisonment, and
forfeiture provided in this title if
(1)
the offense involves an access device issued, owned, managed,
or controlled by a financial institution, account issuer,
credit card system member, or other entity within the
jurisdiction of the United States; and
(2) the person transports, delivers, conveys, transfers
to or through, or otherwise stores, secrets, or holds
within the jurisdiction of the United States, any article
used to assist in the commission of the offense or the
proceeds of such offense or property derived there from.
18
USC §1030: Fraud and related activity in connection with
computers
(a)
Whoever
(1)
having knowingly accessed a computer without authorization
or exceeding authorized access, and by means of such conduct
having obtained information that has been determined by
the United States Government pursuant to an Executive
order or statute to require protection against unauthorized
disclosure for reasons of national defense or foreign
relations, or any restricted data, as defined in paragraph
y. of section 11 of the Atomic Energy Act of 1954, with
reason to believe that such information so obtained could
be used to the injury of the United States, or to the
advantage of any foreign nation willfully communicates,
delivers, transmits, or causes to be communicated, delivered,
or transmitted, or attempts to communicate, deliver, transmit
or cause to be communicated, delivered, or transmitted
the same to any person not entitled to receive it, or
willfully retains the same and fails to deliver it to
the officer or employee of the United States entitled
to receive it;
(2) intentionally accesses a computer without authorization
or exceeds authorized access, and thereby obtains—
(A)
information contained in a financial record of a financial
institution, or of a card issuer as defined in section
1602(n) of title 15, or contained in a file of a consumer
reporting agency on a consumer, as such terms are defined
in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(B) information from any department or agency of the United
States; or
(C) information from any protected computer if the conduct
involved an interstate or foreign communication;
(3)
intentionally, without authorization to access any nonpublic
computer of a department or agency of the United States,
accesses such a computer of that department or agency
that is exclusively for the use of the Government of the
United States or, in the case of a computer not exclusively
for such use, is used by or for the Government of the
United States and such conduct affects that use by or
for the Government of the United States;
(4) knowingly and with intent to defraud, accesses a protected
computer without authorization, or exceeds authorized
access, and by means of such conduct furthers the intended
fraud and obtains anything of value, unless the object
of the fraud and the thing obtained consists only of the
use of the computer and the value of such use is not more
than $5,000 in any 1 - year period;
(5)
(A)
(i)
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;
(ii) intentionally accesses a protected computer without
authorization, and as a result of such conduct, recklessly
causes damage; or
(iii) intentionally accesses a protected computer without
authorization, and as a result of such conduct, causes
damage; and
(B)
by conduct described in clause (i), (ii), or (iii) of
subparagraph (A), caused (or, in the case of an attempted
offense, would, if completed, have caused)
(i)
loss to 1 or more persons during any 1 - year period (and,
for purposes of an investigation, prosecution, or other
proceeding brought by the United States only, loss resulting
from a related course of conduct affecting 1 or more other
protected computers) aggregating at least $5,000 in value;
(ii) the modification or impairment, or potential modification
or impairment, of the medical examination, diagnosis,
treatment, or care of 1 or more individuals;
(iii) physical injury to any person;
(iv) a threat to public health or safety; or
(v) damage affecting a computer system used by or for
a government entity in furtherance of the administration
of justice, national defense, or national security;
(6)
knowingly and with intent to defraud traffics (as defined
in section 1029) in any password or similar information
through which a computer may be accessed without authorization,
if
(A)
such trafficking affects interstate or foreign commerce;
or
(B) such computer is used by or for the Government of
the United States;
(7)
with intent to extort from any person any money or other
thing of value, transmits in interstate or foreign commerce
any communication containing any threat to cause damage
to a protected computer;
shall
be punished as provided in subsection (c) of this section.
(b) Whoever attempts to commit an offense under subsection
(a) of this section shall be punished as provided in subsection
(c) of this section.
(c) The punishment for an offense under subsection (a)
or (b) of this section is
(1)
(A)
a fine under this title or imprisonment for not more than
ten years, or both, in the case of an offense under subsection
(a)(1) of this section which does not occur after a conviction
for another offense under this section, or an attempt
to commit an offense punishable under this subparagraph;
and
(B) a fine under this title or imprisonment for not more
than twenty years, or both, in the case of an offense
under subsection (a)(1) of this section which occurs after
a conviction for another offense under this section, or
an attempt to commit an offense punishable under this
subparagraph;
(2)
(A)
except as provided in subparagraph (B), a fine under this
title or imprisonment for not more than one year, or both,
in the case of an offense under subsection (a)(2), (a)(3),
(a)(5)(A)(iii), or (a)(6) of this section which does not
occur after a conviction for another offense under this
section, or an attempt to commit an offense punishable
under this subparagraph;
(B) a fine under this title or imprisonment for not more
than 5 years, or both, in the case of an offense under
subsection (a)(2), or an attempt to commit an offense
punishable under this subparagraph, if
(i)
the offense was committed for purposes of commercial advantage
or private financial gain;
(ii) the offense was committed in furtherance of any criminal
or tortious act in violation of the Constitution or laws
of the United States or of any State; or
(iii) the value of the information obtained exceeds $5,000;
and
(C)
a fine under this title or imprisonment for not more than
ten years, or both, in the case of an offense under subsection
(a)(2), (a)(3) or (a)(6) of this section which occurs
after a conviction for another offense under this section,
or an attempt to commit an offense punishable under this
subparagraph;
(3)
(A)
a fine under this title or imprisonment for not more than
five years, or both, in the case of an offense under subsection
(a)(4) or (a)(7) of this section which does not occur
after a conviction for another offense under this section,
or an attempt to commit an offense punishable under this
subparagraph; and
(B) a fine under this title or imprisonment for not more
than ten years, or both, in the case of an offense under
subsection (a)(4), (a)(5)(A)(iii), or (a)(7) of this section
which occurs after a conviction for another offense under
this section, or an attempt to commit an offense punishable
under this subparagraph;
(4)
(A)
except as provided in paragraph (5), a fine under this
title, imprisonment for not more than 10 years, or both,
in the case of an offense under subsection (a)(5)(A)(i),
or an attempt to commit an offense punishable under that
subsection;
(B) a fine under this title, imprisonment for not more
than 5 years, or both, in the case of an offense under
subsection (a)(5)(A)(ii), or an attempt to commit an offense
punishable under that subsection;
(C) except as provided in paragraph (5), a fine under
this title, imprisonment for not more than 20 years, or
both, in the case of an offense under subsection (a)(5)(A)(i)
or (a)(5)(A)(ii), or an attempt to commit an offense punishable
under either subsection, that occurs after a conviction
for another offense under this section; and
(5)
(A)
if the offender knowingly or recklessly causes or attempts
to cause serious bodily injury from conduct in violation
of subsection (a)(5)(A)(i), a fine under this title or
imprisonment for not more than 20 years, or both; and
(B) if the offender knowingly or recklessly causes or
attempts to cause death from conduct in violation of subsection
(a)(5)(A)(i), a fine under this title or imprisonment
for any term of years or for life, or both.
(d)
(1)
The United States Secret Service shall, in addition to
any other agency having such authority, have the authority
to investigate offenses under this section.
(2) The Federal Bureau of Investigation shall have primary
authority to investigate offenses under subsection (a)(1)
for any cases involving espionage, foreign counterintelligence,
information protected against unauthorized disclosure
for reasons of national defense or foreign relations,
or Restricted Data (as that term is defined in section
11y of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)),
except for offenses affecting the duties of the United
States Secret Service pursuant to section 3056(a) of this
title.
(3) Such authority shall be exercised in accordance with
an agreement which shall be entered into by the Secretary
of the Treasury and the Attorney General.
(e)
As used in this section
(1)
the term "computer" means an electronic, magnetic,
optical, 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, but such term does not include an automated
typewriter or typesetter, a portable hand held calculator,
or other similar device;
(2) the term "protected computer" means a computer
(A)
exclusively for the use of a financial institution or
the United States Government, or, in the case of a computer
not exclusively for such use, used by or for a financial
institution or the United States Government and the conduct
constituting the offense affects that use by or for the
financial institution or the Government; or
(B) which is used in interstate or foreign commerce or
communication, including a computer located outside the
United States that is used in a manner that affects interstate
or foreign commerce or communication of the United States;
(3)
the term "State" includes the District of Columbia,
the Commonwealth of Puerto Rico, and any other commonwealth,
possession or territory of the United States;
(4) the term "financial institution" means
(A)
an institution 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;
(C) a credit union with accounts insured by the National
Credit Union Administration;
(D) a member of the Federal home loan bank system and
any home loan bank;
(E) any institution of the Farm Credit System under the
Farm Credit Act of 1971;
(F) a broker - dealer registered with the Securities and
Exchange Commission pursuant to section 15 of the Securities
Exchange Act of 1934;
(G) the Securities Investor Protection Corporation;
(H) a branch or agency of a foreign bank (as such terms
are defined in paragraphs (1) and (3) of section 1(b)
of the International Banking Act of 1978); and
(I) an organization operating under section 25 or section
25(a) of the Federal Reserve Act;
(5)
the term "financial record" means information
derived from any record held by a financial institution
pertaining to a customer's relationship with the financial
institution;
(6) the term "exceeds authorized access" means
to access a computer with authorization and to use such
access to obtain or alter information in the computer
that the accesser is not entitled so to obtain or alter;
(7) the term "department of the United States"
means the legislative or judicial branch of the Government
or one of the executive departments enumerated in section
101 of title 5;
(8) the term "damage" means any impairment to
the integrity or availability of data, a program, a system,
or information;
(9) the term "government entity" includes the
Government of the United States, any State or political
subdivision of the United States, any foreign country,
and any state, province, municipality, or other political
subdivision of a foreign country;
(10) the term "conviction" shall include a conviction
under the law of any State for a crime punishable by imprisonment
for more than 1 year, an element of which is unauthorized
access, or exceeding authorized access, to a computer;
(11) the term "loss" means any reasonable cost
to any victim, including the cost of responding to an
offense, conducting a damage assessment, and restoring
the data, program, system, or information to its condition
prior to the offense, and any revenue lost, cost incurred,
or other consequential damages incurred because of interruption
of service; and
(12) the term "person" means any individual,
firm, corporation, educational institution, financial
institution, governmental entity, or legal or other entity.
(f)
This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of
a law enforcement agency of the United States, a State,
or a political subdivision of a State, or of an intelligence
agency of the United States.
(g) Any person who suffers damage or loss by reason of
a violation of this section may maintain a civil action
against the violator to obtain compensatory damages and
injunctive relief or other equitable relief. A civil action
for a violation of this section may be brought only if
the conduct involves 1 of the factors set forth in clause
(i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B).
Damages for a violation involving only conduct described
in subsection (a)(5)(B)(i) are limited to economic damages.
No action may be brought under this subsection unless
such action is begun within 2 years of the date of the
act complained of or the date of the discovery of the
damage. No action may be brought under this subsection
for the negligent design or manufacture of computer hardware,
computer software, or firmware.
(h) The Attorney General and the Secretary of the Treasury
shall report to the Congress annually, during the first
3 years following the date of the enactment of this subsection,
concerning investigations and prosecutions under subsection
(a)(5).
Requires
the intent to devise a scheme to defraud person(s) of
money or property by using false pretenses, representations
or promises and in the course of the scheme uses (or causes
to be used) interstate/foreign wire transmissions.
Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property
by means of false or fraudulent pretenses, representations,
or promises, transmits or causes to be transmitted by
means of wire, radio, or television communication in interstate
or foreign commerce, any writings, signs, signals, pictures,
or sounds for the purpose of executing such scheme or
artifice, shall be fined under this title or imprisoned
not more than 20 years, or both. If the violation affects
a financial institution, such person shall be fined not
more than $1,000,000 or imprisoned not more than 30 years,
or both. Comment: Most e - mails,
internet rely chats, bulletin boards, etc. found on, or
through, the internet are interstate transmissions and
thus federal jurisdiction over the activity would be established.
The
Economic Espionage Act of 1996, 18 U.S.C. §§ 1831 - 1839
The Economic Espionage Act of 1996 ("EEA") contains
two separate provisions that criminalize the theft or
misappropriation of trade secrets. The first provision,
codified at 18
U.S.C. § 1831(a), is directed towards foreign
economic espionage and requires that the theft of the
trade secret be done to benefit a foreign government,
instrumentality, or agent. In contrast, the second provision,
18
U.S.C. § 1832, makes criminal the commercial
theft of trade secrets, carried out for purely economic
or commercial advantage:
(a)
In general. Whoever, intending or knowing that the offense
will benefit any foreign government, foreign instrumentality,
or foreign agent, knowingly
(1)
steals, or without authorization appropriates, takes,
carries away, or conceals, or by fraud, artifice, or deception
obtains a trade secret;
(2) without authorization copies, duplicates, sketches,
draws, photographs, downloads, uploads, alters, destroys,
photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing
the same to have been stolen or appropriated, obtained,
or converted without authorization;
(4) attempts to commit any offense described in any of
paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit
any offense described in any of paragraphs (1) through
(3), and one or more of such persons do any act to effect
the object of the conspiracy,
shall,
except as provided in subsection (b), be fined not more
than $500,000 or imprisoned not more than 15 years, or
both.
(b) Organizations. Any organization that commits any offense
described in subsection (a) shall be fined not more than
$10,000,000.
(a)
Whoever, with intent to convert a trade secret, that is
related to or included in a product that is produced for
or placed in interstate or foreign commerce, to the economic
benefit of anyone other than the owner thereof, and intending
or knowing that the offense will, injure any owner of
that trade secret, knowingly
(1)
steals, or without authorization appropriates, takes,
carries away, or conceals, or by fraud, artifice, or deception
obtains such information;
(2) without authorization copies, duplicates, sketches,
draws, photographs, downloads, uploads, alters, destroys,
photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys such information;
(3) receives, buys, or possesses such information, knowing
the same to have been stolen or appropriated, obtained,
or converted without authorization;
(4) attempts to commit any offense described in paragraphs
(1) through (3); or
(5) conspires with one or more other persons to commit
any offense described in paragraphs (1) through (3), and
one or more of such persons do any act to effect the object
of the conspiracy,
shall,
except as provided in subsection (b), be fined under this
title or imprisoned not more than 10 years, or both.
(b) Any organization that commits any offense described
in subsection (a) shall be fined not more than $5,000,000.
This
chapter does not prohibit
(1) any otherwise lawful activity conducted by a governmental
entity of the United States, a State, or a political subdivision
of a State; or
(2) the reporting of a suspected violation of law to any
governmental entity of the United States, a State, or
a political subdivision of a State, if such entity has
lawful authority with respect to that violation.
(a)
The court, in imposing sentence on a person for a violation
of this chapter, shall order, in addition to any other
sentence imposed, that the person forfeit to the United
States
(1)
any property constituting, or derived from, any proceeds
the person obtained, directly or indirectly, as the result
of such violation; and
(2) any of the person's property used, or intended to
be used, in any manner or part, to commit or facilitate
the commission of such violation, if the court in its
discretion so determines, taking into consideration the
nature, scope, and proportionality of the use of the property
in the offense.
(b)
Property subject to forfeiture under this section, any
seizure and disposition thereof, and any administrative
or judicial proceeding in relation thereto, shall be governed
by section 413 of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. 853), except for subsections
(d) and (j) of such section, which shall not apply to
forfeitures under this section.
In
any prosecution or other proceeding under this chapter,
the court shall enter such orders and take such other
action as may be necessary and appropriate to preserve
the confidentiality of trade secrets, consistent with
the requirements of the Federal Rules of Criminal and
Civil Procedure, the Federal Rules of Evidence, and all
other applicable laws. An interlocutory appeal by the
United States shall lie from a decision or order of a
district court authorizing or directing the disclosure
of any trade secret.
(a)
The Attorney General may, in a civil action, obtain appropriate
injunctive relief against any violation of this chapter.
(b) The district courts of the United States shall have
exclusive original jurisdiction of civil actions under
this section.
§
1837. Applicability to conduct outside the United States
This
chapter also applies to conduct occurring outside the
United States if
(1) the offender is a natural person who is a citizen
or permanent resident alien of the United States, or an
organization organized under the laws of the United States
or a State or political subdivision thereof; or
(2) an act in furtherance of the offense was committed
in the United States.
This
chapter shall not be construed to preempt or displace
any other remedies, whether civil or criminal, provided
by United States Federal, State, commonwealth, possession,
or territory law for the misappropriation of a trade secret,
or to affect the otherwise lawful disclosure of information
by any Government employee under section 552 of title
5 (commonly known as the Freedom of Information Act).
As
used in this chapter
(1) the term "foreign instrumentality" means
any agency, bureau, ministry, component, institution,
association, or any legal, commercial, or business organization,
corporation, firm, or entity that is substantially owned,
controlled, sponsored, commanded, managed, or dominated
by a foreign government;
(2) the term "foreign agent" means any officer,
employee, proxy, servant, delegate, or representative
of a foreign government;
(3) the term "trade secret" means all forms
and types of financial, business, scientific, technical,
economic, or engineering information, including patterns,
plans, compilations, program devices, formulas, designs,
prototypes, methods, techniques, processes, procedures,
programs, or codes, whether tangible or intangible, and
whether or how stored, compiled, or memorialized physically,
electronically, graphically, photographically, or in writing
if
(A)
the owner thereof has taken reasonable measures to keep
such information secret; and
(B) the information derives independent economic value,
actual or potential, from not being generally known to,
and not being readily ascertainable through proper means
by, the public; and
(4)
the term "owner", with respect to a trade secret,
means the person or entity in whom or in which rightful
legal or equitable title to, or license in, the trade
secret is reposed.
Willful
copyright infringement is criminalized by 17 U.S.C. § 506(a) in concert with18 U.S.C. §
2319 for economically motivated infringement
or large - scale infringement (even if not committed for
commercial gain). Felony penalties attach to violations
involving reproduction or distribution of at least ten
copies valued at more than $2,500. See 18 U.S.C. § 2319(b)(1). This chapter provides
a primer on copyright law, an analysis of the elements
of copyright infringement, a review of the defenses to
the crime, and a summary of the statutory penalties arising
from convictions. Finally, this chapter explores some
of the novel copyright infringement issues related to
the Internet. Forms providing sample indictments and jury
instructions for criminal copyright infringement are provided
in Appendix C. Prosecutors may find other resources to
be helpful as well, including treatises, e.g., Melville
B. Nimmer & David Nimmer, Nimmer on Copyright Ch.
15 (perm. ed. rev. vol. 1999) (criminal actions), or law
review articles. See, e.g., Michael Coblenz, Intellectual
Property Crimes, 9 Alb. L.J. Sci. & Tech. 235 (1999);
Randy Gidseg et al., Intellectual
Property Crimes, 36 Am. Crm. L. Rev. 835 (1999).
Trafficking in Counterfeit Labels: 18 U.S.C. § 2318
Creative
works can be protected by criminal statutes aside from
the Copyright Act. The most important of these is the
felony provision at 18 U.S.C. § 2318,
which Congress amended on July 2, 1996 as part of the
Anticounterfeiting Consumer Protection Act of 1996. Pub.
L. No. 104 - 153, 110 Stat. 1386 (1996). This Act enhances
the integrity of the copyright system by specifically
prohibiting trafficking in counterfeit labels designed
to be affixed to phonorecords, copies of computer programs,
motion pictures and audiovisual works, as well as trafficking
in counterfeit documentation or packaging for computer
programs. Not surprisingly, the statute relies heavily
upon copyright law. For example, for purposes of 18 U.S.C.
§ 2318, the terms "copy," "phonorecord,"
"computer program," "motion picture,"
and "audiovisual work" have the meanings given
those terms by the copyright statute at 17 U.S.C.
§ 101.See
18
U.S.C. § 2318(b)(3)
Forms providing sample indictments and jury instructions
for trafficking in counterfeit labels, 18
U.S.C. § 2318.
§
2318. Trafficking in counterfeit labels for phonorecords,
copies of computer programs or computer program documentation
or packaging, and copies of motion pictures or other audio
visual works, and trafficking in counterfeit computer
program documentation or packaging
(a)
Whoever, in any of the circumstances described in subsection
(c) of this section, knowingly traffics in a counterfeit
label affixed or designed to be affixed to a phonorecord,
or a copy of a computer program or documentation or packaging
for a computer program, or a copy of a motion picture
or other audiovisual work, and whoever, in any of the
circumstances described in subsection (c) of this section,
knowingly traffics in counterfeit documentation or packaging
for a computer program, shall be fined under this title
or imprisoned for not more than five years, or both.
(b) As used in this section
(1)
the term "counterfeit label" means an identifying
label or container that appears to be genuine, but is
not;
(2) the term "traffic" means to transport, transfer
or otherwise dispose of, to another, as consideration
for anything of value or to make or obtain control of
with intent to so transport, transfer or dispose of; and
(3) the terms "copy", "phonorecord",
