Internet Law
November 29, 1999
CFAA
Analysis
§ 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.[(y)] of section
11 of the Atomic Energy Act of 1954 [42
USCS § 2014(y)], 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) 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;
(B) intentionally accesses a protected computer
without authorization, and as a result of such conduct, recklessly causes
damage; or
(C) intentionally accesses a protected computer
without authorization, and as a result of such conduct, causes damage;
(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, firm,
association, educational institution, financial institution, government entity,
or other legal entity, 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) 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)(C), 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; and
(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), 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;
(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; and
(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), (a)(5)(A), (a)(5)(B), 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), (a)(5)(B), (a)(5)(C), 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 section; and
(4) [Deleted]
(d) The United States Secret Service shall, in addition to any other
agency having such authority, have the authority to investigate offenses under
subsections (a)(2)(A), (a)(2)(B), (a)(3), (a)(4), (a)(5), and (a)(6) of 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 "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;
(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 [15
USCS § 78o];
(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 [12
USCS § 3101(1) and (3)]); 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 department enumerated in section 101 of title 5; and
(8) the term "damage" means any impairment to the
integrity or availability of data, a program, a system, or information, that--
(A) causes loss aggregating at least $ 5,000 in value
during any 1-year period to one or more individuals;
(B) modifies or impairs, or potentially modifies or
impairs, the medical examination, diagnosis, treatment, or care of one or more
individuals;
(C) causes physical injury to any person; or
(D) threatens public health or safety; and
(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.
(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. Damages for violations
involving damage as defined in subsection (e)(8)(A) 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.
(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 [enacted Sept. 13, 1994], concerning
investigations and prosecutions under subsection (a)(5).
Riggs – Professor
Staudt Casebook Edit
hard problem in federal statutory construction
Perry – Professor
Staudt Casebook Edit
hard problem in federalism
Briggs – Professor
Staudt Casebook Edit
hard problem in civil v. criminal