[IP] more on Hard time? Not for cyber criminals

[Dave Farber <dave@farber.net>]

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Dave Farber  +1 412 726 9889



 ..... Forwarded Message .......
From: "Jennifer S. Granick" <jennifer@granick.com>
To: dave@farber.net
Date: Tue, 17 Aug 2004 11:21:09 -0700
Subj: Re: [IP] Hard time? Not for cyber criminals


Dave:

I hope you'll see fit to post this rebuttal to the IP list.  Thank you.

Jennifer Granick


In fact, convictions for computer intrusions under the Computer Fraud and Abuse Act (18 U.S.C. 1030) are sentenced more harshly than comparable crimes that are sentenced under the same federal guideline.  (I and the United States Sentencing Commission disagree with Declan that polluting the water or aggravated assault are comparable federal offenses.  The offense is punished under the same rules as economic or white collar fraud.)

First, under the current sentencing law, the estimation of loss is the primary factor driving both economic and computer crime sentencing. Along with other relevant factors under the guidelines, loss should reflect the seriousness of the offense and the defendant's relative culpability. in economic crimes, the calculation of loss is generally limited to "reasonably foreseeable pecuniary harm." However, in computer crime sentencing, loss includes unforeseeable pecuniary harm.  USSG § 2B1.1 Application Note 2(A)(v)(III). The inclusion of unforeseeable pecuniary harms in the definition of loss, including "any lost revenue due to interruption of service" results in computer crimes being treated more harshly than other crimes.

Second, computer crime offenders disproportionately receive an upward sentencing adjustment for use of either "sophisticated means" or a "special skill" in the commission of the offense. U.S.S.G. 2B1.1(b)(8)(B), 3B1.3.  The application of these adjustments overstate a defendant's culpability because almost every computer offense inherently requires sophisticated means or a special skill the general public does not possess.
Third, there are several upward adjustments that are far more likely to apply in computer crime cases than in other economic fraud cases, including enhancements for multiple victims and for unauthorized access devices. 
Contrary to the suggestion in the article, there are a number of computer crime cases where the defendant received more than 30 months in prison. http://www.usdoj.gov/criminal/cybercrime/cccases.html.  Also, the maximum sentence for Parson's offense is ten years, not 30.  

For more detailed information on how computer crimes are sentenced more harshly than comparable offenses, see the comments the Center for Internet and Society Cyberlaw Clinic filed on behalf of the EFF, the NACDL and The Sentencing Project, located at: http://cyberlaw.stanford.edu/about/cases/federal_sentencing_guidel.shtml



--
Jennifer Stisa Granick, Esq.
Executive Director
Center for Internet & Society
Cyberlaw Clinic
Stanford Law School
559 Nathan Abbott Way
Stanford, CA  94305
(650) 724-0014
(650) 723-4426 fax
jennifer @ law.stanford.edu
http://cyberlaw.stanford.edu/

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