S.Amdt. 1085

1. Adds DIVISION ___--IDENTITY THEFT AND DATA PRIVACY at the end of the bill

   Adds a section

   In S. 1867 · Placed on Calendar Senate

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   Inserted: DIVISION ___--IDENTITY THEFT AND DATA PRIVACY

   Inserted: SEC. _01. ORGANIZED CRIMINAL ACTIVITY IN CONNECTION WITH UNAUTHORIZED ACCESS TO PERSONALLY IDENTIFIABLE INFORMATION.

   Inserted: Section 1961(1) of title 18, United States Code, is amended by inserting "section 1030 (relating to fraud and related activity in connection with computers) if the act is a felony," before "section 1084".

   Inserted: SEC. _02. PENALTIES FOR FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUTERS.

   Inserted: Section 1030(c) of title 18, United States Code, is amended to read as follows:

   Inserted: "(c) The punishment for an offense under subsection (a) or (b) of this section is--

   Inserted: "(1) a fine under this title or imprisonment for not more than 20 years, or both, in the case of an offense under subsection (a)(1) of this section;

   Inserted: "(2)(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than 3 years, or both, in the case of an offense under subsection (a)(2); or

   Inserted: "(B) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under paragraph (a)(2) of this section, if--

   Inserted: "(i) the offense was committed for purposes of commercial advantage or private financial gain;

   Inserted: "(ii) the offense was committee in the furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States, or of any State; or

   Inserted: "(iii) the value of the information obtained, or that would have been obtained if the offense was completed, exceeds $5,000;

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   Inserted: "(3) a fine under this title or imprisonment for not more than 1 year, or both, in the case of an offense under subsection (a)(3) of this section;

   Inserted: "(4) a fine under this title or imprisonment of not more than 20 years, or both, in the case of an offense under subsection (a)(4) of this section;

   Inserted: "(5)(A) except as provided in subparagraph (D), a fine under this title, imprisonment for not more than 20 years, or both, in the case of an offense under subsection (a)(5)(A) of this section, if the offense caused--

   Inserted: "(i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;

   Inserted: "(ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;

   Inserted: "(iii) physical injury to any person;

   Inserted: "(iv) a threat to public health or safety;

   Inserted: "(v) damage affecting a computer used by, or on behalf of, an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; or

   Inserted: "(vi) damage affecting 10 or more protected computers during any 1-year period;

   Inserted: "(B) a fine under this title, imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(5)(B), if the offense caused a harm provided in clause (i) through (vi) of subparagraph (A) of this subsection;

   Inserted: "(C) if the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any term of years or for life, or both; or

   Inserted: "(D) a fine under this title, imprisonment for not more than 1 year, or both, for any other offense under subsection (a)(5);

   Inserted: "(6) a fine under this title or imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(6) of this section; or

   Inserted: "(7) a fine under this title or imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(7) of this section.".

   Inserted: SEC. _03. TRAFFICKING IN PASSWORDS.

   Inserted: Section 1030(a) of title 18, United States Code, is amended by striking paragraph (6) and inserting the following:

   Inserted: "(6) knowingly and with intent to defraud traffics (as defined in section 1029) in--

   Inserted: "(A) any password or similar information through which a protected computer as defined in subparagraphs (A) and (B) of subsection (e)(2) may be accessed without authorization; or

   Inserted: "(B) any means of access through which a protected computer as defined in subsection (e)(2)(A) may be accessed without authorization.".

   Inserted: SEC. _04. CONSPIRACY AND ATTEMPTED COMPUTER FRAUD OFFENSES.

   Inserted: Section 1030(b) of title 18, United States Code, is amended by inserting "for the completed offense" after "punished as provided".

   Inserted: SEC. _05. CRIMINAL AND CIVIL FORFEITURE FOR FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COMPUTERS.

   Inserted: Section 1030 of title 18, United States Code, is amended by striking subsections (i) and (j) and inserting the following:

   Inserted: "(i) Criminal Forfeiture.--

   Inserted: "(1) The court, in imposing sentence on any person convicted of a violation of this section, or convicted of conspiracy to violate this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States--

   Inserted: "(A) such person's interest in any property, real or personal, that was used, or intended to be used, to commit or facilitate the commission of such violation; and

   Inserted: "(B) any property, real or personal, constituting or derived from any gross proceeds, or any property traceable to such property, that such person obtained, directly or indirectly, as a result of such violation.

   Inserted: "(2) The criminal forfeiture of property under this subsection, including any seizure and disposition of the property, and any related judicial or administrative proceeding, shall be governed by the provisions of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), except subsection (d) of that section.

   Inserted: "(j) Civil Forfeiture.--

   Inserted: "(1) The following shall be subject to forfeiture to the United States and no property right, real or personal, shall exist in them:

   Inserted: "(A) Any property, real or personal, that was used, or intended to be used, to commit or facilitate the commission of any violation of this section, or a conspiracy to violate this section.

   Inserted: "(B) Any property, real or personal, constituting or derived from any gross proceeds obtained directly or indirectly, or any property traceable to such property, as a result of the commission of any violation of this section, or a conspiracy to violate this section.

   Inserted: "(2) Seizures and forfeitures under this subsection shall be governed by the provisions in chapter 46 of title 18, United States Code, relating to civil forfeitures, except that such duties as are imposed on the Secretary of the Treasury under the customs laws described in section 981(d) of title 18, United States Code, shall be performed by such officers, agents and other persons as may be designated for that purpose by the Secretary of Homeland Security or the Attorney General.".

   Inserted: SEC. _06. DAMAGE TO CRITICAL INFRASTRUCTURE COMPUTERS.

   Inserted: (a) In General.--Chapter 47 of title 18, United States Code, is amended by inserting after section 1030 the following:

   Inserted: "SEC. 1030A. AGGRAVATED DAMAGE TO A CRITICAL INFRASTRUCTURE COMPUTER.

   Inserted: "(a) Definitions.--In this section--

   Inserted: "(1) the terms 'computer' and 'damage' have the meanings given such terms in section 1030; and

   Inserted: "(2) the term 'critical infrastructure computer' means a computer that manages or controls systems or assets vital to national defense, national security, national economic security, public health or safety, or any combination of those matters, whether publicly or privately owned or operated, including--

   Inserted: "(A) gas and oil production, storage, and delivery systems;

   Inserted: "(B) water supply systems;

   Inserted: "(C) telecommunication networks;

   Inserted: "(D) electrical power delivery systems;

   Inserted: "(E) finance and banking systems;

   Inserted: "(F) emergency services;

   Inserted: "(G) transportation systems and services; and

   Inserted: "(H) government operations that provide essential services to the public.

   Inserted: "(b) Offense.--It shall be unlawful to, during and in relation to a felony violation of section 1030, intentionally cause or attempt to cause damage to a critical infrastructure computer, and such damage results in (or, in the case of an attempt, would, if completed have resulted in) the substantial impairment-- "(1) of the operation of the critical infrastructure computer; or "(2) of the critical infrastructure associated with the computer.

   Inserted: "(c) Penalty.--Any person who violates subsection (b) shall be fined under this title, imprisoned for not less than 3 years nor more than 20 years, or both.

   Inserted: "(d) Consecutive Sentence.--Notwithstanding any other provision of law--

   Inserted: "(1) a court shall not place on probation any person convicted of a violation of this section;

   Inserted: "(2) except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment, including any term of imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony violation section 1030;

   Inserted: "(3) in determining any term of imprisonment to be imposed for a felony violation of section 1030, a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; and

   Inserted: "(4) a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the United States Sentencing Commission pursuant to section 994 of title 28.".

   Inserted: (b) Technical and Conforming Amendment.--The table of sections for chapter 47 of title 18, United States Code, is amended by inserting after the item relating to section 1030 the following:

   Inserted: "Sec. 1030A. Aggravated damage to a critical infrastructure computer.".

   Inserted: SEC. _07. LIMITATION ON CERTAIN ACTIONS INVOLVING UNAUTHORIZED USE.

   Inserted: Section 1030(a)(2) of title 18, United States Code, is amended by striking subsection (a)(2) and inserting the following:

   Inserted: "(2) intentionally accesses a computer --

   Inserted: "(A) without authorization, and thereby obtains--

   Inserted: "(i) 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.);

   Inserted: "(ii) information from any department or agency of the United States; or

   Inserted: "(iii) information from any protected computer; or

   Inserted: "(B) in excess of authorization, thereby obtains--

   Inserted: "(i) information defined in subparagraph (A) (i) through (iii); and

   Inserted: "(ii) the offense involves--

   Inserted: "(I) information that exceeds $5,000 in value;

   Inserted: "(II) sensitive or private information involving an identifiable individual or entity (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, government-issued identification numbers, unique biometric data, financial records, photographs of a sensitive or private nature, trade secrets, commercial business information, or other similar information;

   Inserted: "(III) information that has been properly classified by the United States Government pursuant to an Executive Order or statute, or determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national security, national defense, or foreign relations, or any restricted data, as defined in paragraph y of section 11 of the Atomic Energy Act of 1954; or

   Inserted: "(IV) information obtained from a computer used by, or on behalf of, a government entity.".

   Inserted: SEC. _08. REPORTING OF CERTAIN CRIMINAL CASES.

   Inserted: Section 1030 of title 18, United States Code, is amended by adding at the end the following:

   Inserted: "(k) Reporting Certain Criminal Cases.--Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Attorney General shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives the number of criminal cases brought under subsection (a)(2)(B), as amended by this Act.".

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   At the end, insert the following:

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As printed