AMENDMENT 551

Amendment: Section 2B1.1(b) is amended by inserting after subdivision (6) the following additional subdivision:

"(7) If the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit any foreign government, foreign instrumentality, or foreign agent, increase by 2 levels.".

The Commentary to §2B1.1 captioned "Statutory Provisions" is amended by inserting "1831, 1832," before "2113(b)".

The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 1 by inserting after the first paragraph the following additional paragraphs:

"‘Trade secret’ is defined in 18 U.S.C. § 1839(3).

‘Foreign instrumentality’ and ‘foreign agent’ are defined in 18 U.S.C. § 1839(1) and (2), respectively.".

The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 2 by inserting after the fourth paragraph the following additional paragraph:

"In an offense involving unlawfully accessing, or exceeding authorized access to, a ‘protected computer’ as defined in 18 U.S.C. § 1030(e)(2)(A) or (B), ‘loss’ includes the reasonable cost to the victim of conducting a damage assessment, restoring the system and data to their condition prior to the offense, and any lost revenue due to interruption of service.".

The Commentary to §2B1.1 captioned "Application Notes" is amended by inserting after Note 14 the following additional notes:

"15. In cases where the loss determined under subsection (b)(1) does not fully capture the harmfulness of the conduct, an upward departure may be warranted. For example, the theft of personal information or writings (e.g., medical records, educational records, a diary) may involve a substantial invasion of a privacy interest that would not be addressed by the monetary loss provisions of subsection (b)(1).

16. In cases involving theft of information from a ‘protected computer’, as defined in 18 U.S.C. § 1030(e)(2)(A) or (B), an upward departure may be warranted where the defendant sought the stolen information to further a broader criminal purpose.".

Section 2B1.3 is amended by inserting after subsection (c) the following additional subsection:

"(d) Special Instruction

(1) If the defendant is convicted under 18 U.S.C. § 1030(a)(5), the minimum guideline sentence, notwithstanding any other adjustment, shall be six months’ imprisonment.".

The Commentary to §2B1.3 captioned "Statutory Provisions" is amended by inserting "1030(a)(5)," before "1361,".

The Commentary to §2B1.3 captioned "Application Notes" is amended in Note 4 by inserting "or interference with a telecommunications network" after "line"; by inserting ", with attendant life-threatening delay in the delivery of emergency medical treatment or disruption of other important governmental or private services" after "hours"; by deleting "instances" and inserting in lieu thereof "cases"; by deleting "would" and inserting in lieu thereof "may"; and by inserting at the end the following:

"See §§5K2.2 (Physical Injury), 5K2.7 (Disruption of Governmental Function), and 5K2.14 (Public Welfare).".

The Commentary to §2B1.3 is amended by adding at the end the following:

"Background: Subsection (d) implements the instruction to the Commission in section 805(c) of Public Law 104-132.".

Section 2B2.3(b) is amended by inserting after subdivision (2) the following additional subdivision:

"(3) If the offense involved invasion of a protected computer resulting in a loss exceeding $2000, increase the offense level by the number of levels from the table in §2F1.1 corresponding to the loss.".

The Commentary to §2B2.3 captioned "Statutory Provision" is amended by deleting "Provision" and inserting in lieu thereof "Provisions"; and by inserting "18 U.S.C. § 1030(a)(3);" before "42 U.S.C.".

The Commentary to §2B2.3 captioned "Application Note" is amended in Note 1 by inserting "For purposes of this guideline—" before "‘Firearm’"; and by inserting after the first paragraph the following additional paragraph:

"‘Protected computer’ means a computer described in 18 U.S.C. § 1030(e)(2)(A) or (B).".

The Commentary to §2B2.3 captioned "Application Note" is amended by deleting "Note" and inserting "Notes" and by inserting after Note 1 the following additional note:

"2. Valuation of loss is discussed in the Commentary to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).".

The Commentary to §2B3.2 captioned "Statutory Provisions" is amended by inserting "1030(a)(7)," following "877,".

The Commentary to §2B3.2 captioned "Background" is amended by inserting at the end:

"This guideline also applies to offenses under 18 U.S.C. § 1030(a)(7) involving a threat to impair the operation of a ‘protected computer.’".

Section 2F1.1 is amended by inserting after subsection (b) the following additional subsection:

"(c) Special Instruction

(1) If the defendant is convicted under 18 U.S.C. § 1030(a)(4), the minimum guideline sentence, notwithstanding any other adjustment, shall be six months’ imprisonment.".

The Commentary to §2F1.1 captioned "Statutory Provisions" is amended by inserting "1030(a)(4)," before "1031,".

The Commentary to §2F1.1 captioned "Background" is amended by inserting at the end the following additional paragraph:

" Subsection (c) implements the instruction to the Commission in section 805(c) of Public Law 104-132.".

Reason for Amendment: This amendment makes a number of changes in the theft, property destruction, trespass, extortion, and fraud guidelines to more effectively punish computer-related offenses. The amendment also addresses new offenses under 18 U.S.C. § 1030(a)(7), prohibiting extortion by threats of damage to a non-public government computer or a computer of a financial institution; 18 U.S.C. § 1831, prohibiting "economic espionage"; and 18 U.S.C. § 1832, prohibiting theft of "trade secrets," as broadly defined at 18 U.S.C. § 1839. Offenses under 18 U.S.C. § 1030(a)(7) are referenced to §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage); offenses under 18 U.S.C. §§ 1031 and 1832 are referenced to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft).

Special instructions have been added to §§2B1.3 and 2F1.1 to provide that the minimum guideline sentence for those convicted under 18 U.S.C. § 1030(a)(4) and (5) is six months’ imprisonment. These provisions implement a directive to the Commission in section 805(c) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, 110 Stat. 1305.

Effective Date: The effective date of this amendment is November 1, 1997.