Last month Sen. Graham (R,SC) introduced S 3288, the International
Cybercrime Prevention Act. The bill would make a number of amendments to 18 USC
that are intended to make it easier to prosecute a variety of cybercrimes and
to effectively increase the punishments available for such crimes by allowing
for seizures and forfeitures in conjunction with the prosecution of those
crimes.
Racketeering
Section 2 of the bill would add language to
18
USC 1956 (Laundering of monetary instruments) that would include
§2512
(Manufacture, distribution, possession, and advertising of wire, oral, or
electronic communication intercepting devices prohibited) as a predicate act
for
§1956. It would
additionally add language to
§1961
(Definitions section of the RICO chapter) that would include violations of
§1030 (Fraud and related
activity in connection with computers) in the crimes which could be included in
the definition of ‘racketeering activity’.
Forfeiture
Section 3 of the bill completely rewrites
§2513
(Confiscation of wire, oral, or electronic
communication intercepting devices). First it expands the
confiscation authority to include ‘other property’ to include “any property,
real or personal, constituting or derived from any gross proceeds, or any
property traceable to such property, that such person obtained or retained
directly or indirectly” {new
§2513(a)(1)(A)}
as a result of a violation of
§2511
(Interception and disclosure of wire, oral, or electronic communications prohibited)
or
§2512.
Section 3 provides for criminal forfeiture proceedings using
the procedures established for controlled substance under
21
USC 853 and for civil forfeiture proceedings using the procedures
established under
18
USC Chapter 46.
Botnets
Section 4 of the bill amends
18
USC 1345 (Injunctions against fraud). First it expands the heading of the
section to read “Injunctions against fraud and abuse” {
§4(a)(1)}. Then it adds a new subparagraph (a)(1)(D)
which adds a violation of
§1030(a)(5) to the list
of offenses under which
§1345
allows the Attorney General to “commence a civil action in any Federal court to
enjoin such violation” {existing
§1345(a)(1)}.
The
§1030 offense may
only included if it adversely affects 100 or more protected computers in a one-year
period.
Critical Infrastructure Computer
Section 5 of the bill would add a new §1030A (Aggravated damage
to a critical infrastructure computer) to 18 USC. This new section would make
it separately illegal during the violation of §1030 “to knowingly cause or attempt to cause damage
to a critical infrastructure computer” {new §1030A(a)} if the damage results in substantial
impairment of:
• The operation of the critical
infrastructure computer; or
• The critical infrastructure associated with such
computer
The section uses the definition of ‘computer’ and ‘damage’
from §1030. The
definition of ‘critical infrastructure’ is spelled out in §1030A(d)(2). In general
it is a pretty generic definition except that it specifically adds “including
voter registration databases, voting machines, and other communications systems
that manage the election process or report and display results on behalf of
State and local governments”.
18 USC 1030 Amended
Section 6 of the bill amends
18
USC 1030. First it adds a new subparagraph (8) to
§1030(a) that essentially
expands the list of potential offenses covered under this computer fraud statute.
That new offense would be the trafficking “in the means of access to a
protected computer” {new
§1030(a)(8)}.
While similar to
§1030(a)(6),
it does not include the ‘intent to defraud’ language of that section. It also
includes a requirement that trafficker knows that the recipient of the means of
access intends to use that access to “damage a protected computer in a manner
prohibited by this section” or “violate section
1037
[Fraud and related activity in connection with electronic mail; link added] or
1343
[Fraud by wire, radio, or television; link added]”
Section 6 then goes on to add the same injunction provisions
to §1030 added to §2513 by section 3 of the
bill (described above).
Moving Forward
Graham is a member of the Senate Judiciary Committee and the
Chair of the Subcommittee on Crime and Terrorism. It is very likely that he has
sufficient influence to see this bill considered in Committee. His two
Democratic cosponsors {Sen. Blumenthal (D,CT) and Sen. Whitehous (D,RI)} are
also influential members of the Judiciary Committee, so it would appear that
there will be at least some bipartisan support for the legislation.
I will be very surprised if this bill makes it through the
Committee process this late in the session. It almost certainly will not make
it to the floor of the Senate, because this is a complex bill that would
require floor debate and an amendment process that would interfere with the
work the Senate needs to complete before the end of the year.
Posts
