2011 2h3_1

CHAPTER TWO - OFFENSE CONDUCT


PART H - OFFENSES INVOLVING INDIVIDUAL RIGHTS


3.      PRIVACY AND EAVESDROPPING


§2H3.1.     Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information

(a)       Base Offense Level (Apply the greater): 

(1)       9; or

(2)       6, if the offense of conviction has a statutory maximum term of imprisonment of one year or less but more than six months.

(b)      Specific Offense Characteristics

(1)       If (A) the defendant is convicted under 18 U.S.C. § 1039(d) or (e); or (B) the purpose of the offense was to obtain direct or indirect commercial advantage or economic gain, increase by 3 levels.

(2)       (Apply the greater) If—

(A)       the defendant is convicted under 18 U.S.C. § 119, increase by 8 levels; or

(B)       the defendant is convicted under 18 U.S.C. § 119, and the offense involved the use of a computer or an interactive computer service to make restricted personal information about a covered person publicly available, increase by 10 levels.

(c)      Cross Reference

(1)       If the purpose of the offense was to facilitate another offense, apply the guideline applicable to an attempt to commit that other offense, if the resulting offense level is greater than that determined above.


Commentary

Statutory Provisions:  8 U.S.C. § 1375a(d)(3)(C), (d)(5)(B); 18 U.S.C. §§ 119, 1039, 1905, 2511; 26 U.S.C. §§ 7213(a)(1)-(3), (a)(5), (d), 7213A, 7216;42 U.S.C. §§ 16962, 16984; 47 U.S.C. § 605.  For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1.      Satellite Cable Transmissions.—If the offense involved interception of satellite cable transmissions for purposes of commercial advantage or private financial gain (including avoiding payment of fees), apply §2B5.3 (Criminal Infringement of Copyright) rather than this guideline.

2.      Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of title 18, United States Code, require a term of imprisonment of not more than 5 years to be imposed in addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b), or (c).  In order to comply with the statute, the court should determine the appropriate "total punishment" and divide the sentence on the judgment form between the sentence attributable to the conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18 U.S.C. § 1039(d) or (e).  For example, if the applicable adjusted guideline range is 15-21 months and the court determines a "total punishment" of 21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C. § 1039(d) conduct would achieve the "total punishment" in a manner that satisfies the statutory requirement.

3.      Inapplicability of Chapter Three (Adjustments).—If the enhancement under subsection (b)(2) applies, do not apply §3A1.2 (Official Victim).

4.      Definitions.—For purposes of this guideline:

"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).

"Covered person" has the meaning given that term in 18 U.S.C. § 119(b).

"Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).         

"Means of identification" has the meaning given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual (i.e., not fictitious) individual, other than the defendant or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct).

"Personal information" means sensitive or private information involving an identifiable individual (including such information in the possession of a third party), including (A) medical records; (B) wills; (C) diaries; (D) private correspondence, including e-mail; (E) financial records; (F) photographs of a sensitive or private nature; or (G) similar information.

"Restricted personal information" has the meaning given that term in 18 U.S.C. § 119(b).

5.      Upward Departure.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense.  In such a case, an upward departure may be warranted.  The following are examples of cases in which an upward departure may be warranted:

(A)     The offense involved personal information, means of identification, confidential phone records information, or tax return information of a substantial number of individuals.

(B)     The offense caused or risked substantial non-monetary harm (e.g. physical harm, psychological harm, or severe emotional trauma, or resulted in a substantial invasion of privacy interest) to individuals whose private or protected information was obtained.

Historical Note:  Effective November 1, 1987.  Amended effective November 1, 1989 (see Appendix C, amendment 169); November 1, 2001 (see Appendix C, amendment 628); May 1, 2007 (see Appendix C, amendment 697); November 1, 2007 (see Appendix C, amendment 708); November 1, 2008 (see Appendix C, amendment 718); November 1, 2009 (see Appendix C, amendments 726 and 737).