Most computer hacking charges are prosecuted under the Computer Fraud and Abuse Act (18 U.S.C. §1030). This law covers a variety of different types of computer crimes and has been used very aggressively by the government in recent years.
The basic requirements for prosecution under this computer hacking law are that the computer is a “protected computer,” and that the individual charged accessed that computer “without authorization.” Due to recent amendments to this law, the government defines these terms very broadly.
A “protected computer” is not just a computer that belongs to a government agency, it can include any computer that is connected to the internet. That would include a person’s computer provided by their employer, a computer at the public library, or other electronic devices that have internet access.
Similarly, the definition of “without authorization” is very broad. A person who has authorization to use a certain computer may nonetheless be prosecuted under this law if the person’s use of the computer “exceeds authorization” or if the person uses the computer for some “improper purpose.” If a person is given access to a work computer for limited purposes, but then uses that computer to engage in activity that is not approved (fantasy football, for example), then that person can arguably be prosecuted under this law.
Most criminal prosecutions under the Computer Fraud and Abuse Act fall into one of the following categories:
Obtaining National Security Information
Unauthorized Access of a Protected Computer
Trespassing in Relation to Government Computers
Unauthorized Access with Intent to Defraud (which includes internet fraud and “phishing”)
Damaging a Computer or Computer Information
Trafficking in Computer Passwords with the Intent to Defraud
Threatening to Damage a Computer
In cases involving alleged violations of computer hacking laws, the government also prosecutes anyone who is attempting or conspiring to engage in any of this type of activity. The Computer Fraud and Abuse Act has a provision that specifically addresses attempt and conspiracy charges.
Violations of the Computer Fraud and Abuse Act can be prosecuted as misdemeanors or felonies primarily depending on the motivation behind the computer misconduct. Accessing a computer and obtaining information for profit is generally prosecuted as a felony, as is any violation of this law that causes a loss in excess of $5,000.
The specific penalties for violating the Computer Fraud and Abuse Act depend on the type of misconduct involved and the amount of harm that it causes. As with any other federal criminal prosecution, a person’s sentence will be determined primarily by the calculation of the Advisory Federal Sentencing Guidelines.
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