[IP] more on Hard time? Not for cyber criminals
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Dave Farber +1 412 726 9889
..... Forwarded Message .......
From: "Jennifer S. Granick" <jennifer@xxxxxxxxxxx>
To: dave@xxxxxxxxxx
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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