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[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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