Many of our readers know that the principal cybercrime statute in the United States is the Computer Fraud and Abuse Act, 18 U.S.C. 1030. It has served well over the years since enaction but some prosecutors (and civil plaintiffs to which it also applies) have complained that it does not keep up with newer types of cybercrime. Possibly in response to these critics, Senators Hatch (UT), Biden (DE), and Cochran (MS) have introduced an amendment to Section 1030.
The new bill, "Cyber-Crime Act of 2007" (S. 2213) (Thomas tracker) would make three substantial amendments:
First, it would prohibit "conspiracy to commit an offense" as well as the offenses actually committed. Currently Section 1030 does not cover explicitly "conspiracy" to commit any of its prohibited offenses, although prosecution was possible under other "conspiracy" provisions of Title 18. This makes it explicit now.
Second, the bill seeks to expand the required damage to protected computers threshold from $5,000 in a one-year period to "damage affecting 10 or more protected computers during any one-year period." Currently, in order to be able to prosecute a cybercriminal under some provisions of 1030, there must have been a minimum threshold of $5,000 in damages caused by the alleged cybercrime. In many cases this was not an issue, for example where the cybercrime had a direct financial loss of $5,000. However, other cases may not be so clear-cut. For example, if a small company’s computer is breached and the company expends some time and effort to investigate and fix the problem, the question becomes whether the expenses that the company incurred meet the $5,000 threshold. Should full-time employees’ time be calculated on a per-hour basis to determine damages? How should loss of good will be calculated if the breach becomes public? In some cases these questions have created difficult questions.
Other reasons to introduce the damages to 10 computers requiremens are a couple of relatively new types of crime - Distributed Denial of Service (DDoS) and botnets. Both are very closely interrelated in that the cybercriminal obtains control of a high number of computers (sometimes called ‘zombies’ and almost always substantially more than 10) which they use to disable Internet resources, send spam or phish emails, or use the substantial aggregate computing and network power of these botnets for other evil purposes. Because by definition the owners of the zombie computers would not know that they are part of the botnet, they would not be able to assert damages and meet the $5,000 threshold. Creating a 10 or more damaged computers provision would allow prosecution of botnet operators under Section 1030 without having to show monetary damages to a particular zombie machine.
The reality is that botnet operators can possibly be targeted under Section 1030 for the damages they do as a result of using the botnet to commit a specific act (e.g. spam, phish, DDoS); however, the new proposed provision would allow prosecution before the cybercriminals strike, not after. Kudos for giving tools for proactive legal measures against such acts.
The third of the proposed substantial amendments adds cyber-extortion and threats to reveal confidential information illegally obtained from computer to be computer damage and thus eligible for prosecution under 1030. This provision also aims to deal with a frequent type of cybercrime where there is no verifiable damage. Cyber-extortion can take many forms, but most often the cybercriminals seek to obtain money or something of value in exchange of either i) not attacking or disabling a certain computer or network resource or ii) not releasing confidential information obtained in an illegal way. The new provision covers these and similar situations.
The proposed amendments to Section 1030 are a good step towards catching up with cybercriminals. Senator Biden’s statement in connection with the proposed bill says that, the "[c]urrent law hasn’t kept up with the fast pace of new criminal technologies–right now there are holes in the law that cyber-criminals can readily exploit. The Cyber-Crime Act will fix this, update the law and put us one step ahead of the cyber-criminals, instead of one step behind."