Federal Cyber Crime Defense Attorney Explains Computer Crime & Hacker Charges in the Federal United States District Court in Alexandria Virginia 18 U.S.C. § 1030

Federal Cyber Crime

Federal cyber crimes and computer crimes generally consist of cyber attacks and hacking, even Anonymous “hacktivist” activity. Most computer crimes are Federal jurisdiction due to the interstate nature of the hacking activity and server location. Some computer crimes are Federal in nature due to the Federal government owning the target computer, server, or system. Computer cyber crimes under Federal law consists of (amongst other actions):

1. Gaining (or attempting to gain) unauthorized access to a computer system or its data
2. Disruption or denial of service attacks (DDoS)
3. Hacking a computer or hacking a website, or mal-facing the site
4. Virus or malware installation
5. Unauthorized use of a computer for processing of data
6. Inappropriate use of computers or applications by employees of a company, in a way that it harms the company.

Computer Fraud and Abuse Act 18 USC 1030 

The Computer Fraud and Abuse Act (CFAA) is the United States cybersecurity law that penalizes computer fraud (18 U.S.C. § 1030). The law prohibits accessing a computer without authorization, or in excess of authorization.

Federal Cybercrimes and Penalty Maximums Under 18 USC 1030 Computer Fraud and Abuse Act

Second Offense Penalties Noted in Parenthesis

• Accessing a Computer and Obtaining Information: 1 or 5 (10) years
• Trespassing in a Government Computer: 1 (10) years
• Accessing a Computer to Defraud & Obtain Value: 5 (10) years
• Intentionally Damaging by Knowing Transmission: 1 or 10 (20) years
• Recklessly Damaging by Intentional Access: 1 or 5 (20) years
• Negligently Causing Damage & Loss by Intentional Access: 1 (10) years
• Trafficking in Passwords: 1 (10) years
• Extortion Involving Computers: 5 (10) years
• Obtaining National Security Information: 10 (20) years

ELEMENTS OF EACH FEDERAL CYBERCRIME OFFENSE

Hacking: Accessing a Computer and Obtaining Information

The government must prove that you:

1. Intentionally access a computer
2. without or in excess of authorization
3. obtain information
4. from financial records of financial institution or consumer reporting agency OR the U.S. government OR a protected computer
5. committed for commercial advantage or private financial gain OR committed in furtherance of any criminal or tortious act OR the value of the information obtained exceeds $5,000

Threatening to Damage a Computer

The government must prove that you:

1. With intent to extort money or any other thing of value
2. transmits in interstate or foreign commerce a communication
3. containing a: threat to damage a protected computer OR
   threat to obtain or reveal con dential information without or in excess of authorization OR demand or request for money or value in relation to damage done in connection with the extortion.

Trafficking in Passwords

The government must prove that you:

1. Trafficking
2. in computer password or similar information
3. knowingly and with intent to defraud
4. from financial records of financial institution or consumer reporting agency OR the U.S. government OR a protected computer
5. trafficking affects interstate or foreign commerce OR computer used by or for U.S.

Obtaining National Security Information

The government must prove that you:

1. Knowingly access computer without or in excess of authorization
2. obtain national security information
3. reason to believe the information could injure the U.S. or benefit a foreign nation
4. reason to believe the information could injure the U.S. or benefit a foreign nation
5. willful communication, delivery, transmission (or attempt) OR willful retention of the information

Damaging a Computer or Information

The government must prove that you:

1. 1. Knowingly cause
      transmission of a
      program, information,
      code, or command AND intentionally cause
      damage to protected
      computer without
      authorization

OR

1. 1. Intentionally access a
      protected computer
      without authorization AND recklessly cause damage

OR

1. 1. Intentionally access a
      protected computer without authorization AND cause damage AND cause loss

AND

1. resulting in loss of $5,000 during 1 year OR modifies medical care of a person OR causes physical injury OR threatens public health or safety OR damages systems used by or for government entity for
   administration of justice, national defense, or national security OR damages affect 10 or more protected computers during 1 year

Accessing to Defraud and Obtain Value

The government must prove that you:

1. Knowingly access a protected computer
2. without or in excess of authorization
3. obtain information
4. access furthered the intended fraud
5. obtained anything of value,
   including use if value exceeded $5000

Trespassing in a Government Computer

The government must prove that you:

1. Intentionally access
2. without authorization
3. a nonpublic computer of the U.S. that was exclusively for the use of
   U.S. or was used by or for U.S.
4. affected U.S. use of computer

COMPUTER FRAUD AND ABUSE ACT

18 U.S. Code § 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 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;
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(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 subparagraph; and
(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;
(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; and
(8) the term ‘‘damage’’ means any impairment to the integrity or availability of data, a program, a system, or
information, that –
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(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, concerning investigations and prosecutions
under subsection (a)(5).