When the FBI Comes Calling…®
COMPUTER CRIME
Computer crime is one of the most well-known transnational crimes. Everyone seemingly has imagined a pale individual propped in front of a computer, determined to hack into a secure computer to discover secrets or change data. Perhaps this individual is a European intent on hacking into Defense Department computers to determine the existence of aliens. In fact, as of this writing that is exactly what Gary McKinnon of the United Kingdom did. See Duncan Gardham, Hacker "Was Trying for Proof of Aliens," DAILY TEL., Thu. June 9, 2005, at 7. Mr. McKinnon is currently fighting extradition to the United States. Id.
There are a number of computer crimes that are transnational in nature. Probably the quintessential computer crime is illegally accessing stored data. Another is committing fraud in connection with computers. Another is the illegal interception of electronic communication. A final computer crime is sending unsolicited commercial email, commonly known as spamming.
Illegally Accessing Stored Data
18 U.S.C. § 2701 (2005)
Under 18 U.S.C. § 2701(a), it is illegal to either intentionally access a facility through which an electronic communication service is provided without authorization or to intentionally exceed authorization to access such a facility, thereby obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage.
Punishment under 18 U.S.C. § 2701(b) for violating section 2701(a) depends on the purpose behind the access. If the access was for the purposes of commercial advantage, malicious destruction or damage, private commercial gain, or in furtherance of any criminal or tortuous act in violation of the Constitution, or Federal or State law, first-time offenders will be fined, imprisoned for not more than 5 years, or both. For any subsequent such violation, then punishment consists of a fine, imprisonment for not more than 10 years, or both. If the purpose of the access was for any other reason, then punishment for a first-time offense consists of a fine, imprisonment for not more than 1 year, or both, while subsequent violations are punished by a fine, imprisonment for not more than 5 years, or both.
Exceptions exist under 18 U.S.C. § 2701(c) for people or entities who provide a wire or electronic communication service, for a user of such a service accessing communications intended for his use.
The definition of "electronic communication service" is found in 18 U.S.C. § 2510. It refers to any service that allows its users to send and receive electronic communications, which in turn are defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce." However, wire and oral communications are excepted from this definition, as are tones from a pager, communication from a tracking device, and electronic funds transfer information stored by financial institutions.
Case Law Interpreting Section 2701
An Airline violated section 2701(a)(1) when an airline official gained access to a pilot's secure website by using two other pilot's names to establish accounts and passwords, because the two pilots were not "users" of the website at the time they authorized the official to use their names. Konop v. Hawaiian Airlines, Inc. 302 F.3d 868, 880 (9th Cir. 2002).
However, in a different case, when a company accessed an insurance agent's e-mail without authorization, there was no violation of privacy laws because there was no interception of e-mail within the meaning of privacy laws, and because section 2701(c) provided protection to the company because it provided a wire or electronic communications service. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003).
If a person has authorization to access a database, there can be no violation of section 2701, not matter how maliciously or larcenously that access is used. Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817, 821 (E.D. Mich. 2000).