REPORT TITLE:
Computer Crimes


DESCRIPTION:
Repeals existing law and adds the crimes of computer fraud,
taking by computer, computer trespass, unlawful distribution,
unsolicited email, and computer invasion of privacy.  Provides
for civil actions based on the computer crimes.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2352
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO COMPUTER OFFENSES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Computer crime is a paradigm shift in criminal
 
 2 offenses.  Computers not only enhance the harm of some
 
 3 traditional crimes, but are also the basis for new crimes based
 
 4 on the computer itself.  Hawaii's current computer law is limited
 
 5 and contains loopholes.  The intent of this Act is to adopt
 
 6 stronger protection for Hawaii residents in the area of computer-
 
 7 based offenses.
 
 8      SECTION 2.  Chapter 708, Hawaii Revised Statutes, is amended
 
 9 by adding eleven new sections to be appropriately designated and
 
10 to read as follows:
 
11      "§708-     Computer fraud.  (1)  A person commits the
 
12 offense of computer fraud if the person uses a computer or
 
13 computer network without or exceeding authority and with the
 
14 intent to:
 
15      (a)  Obtain property or services by false pretenses;
 
16      (b)  Devise or execute any scheme or artifice to defraud;
 
17      (c)  Damage or enhance the credit rating of any person; or
 
18      (d)  Impersonate another.
 
19      (2) Computer fraud is a class C felony, unless, under
 

 
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 1 paragraph (a), the value of the property or services obtained is
 
 2 less than $200, in which case it shall be a misdemeanor.
 
 3      §708-     Taking by computer in the first degree.  (1)  A
 
 4 person commits the offense of taking by computer in the first
 
 5 degree when the person, without or exceeding authority, copies
 
 6 any information of significant value from a computer or computer
 
 7 network.  The person does not have to deprive the owner of the
 
 8 use or possession of the material copied in order to have
 
 9 committed an offense under this section.  As used in this section
 
10 "information of significant value" includes information with a
 
11 monetary value assessed at $        or more, passwords, financial
 
12 records including account numbers, medical records, and social
 
13 security or other identification numbers.
 
14      (2)  Taking by computer in the first degree is a class C
 
15 felony.
 
16      §708-     Taking by computer in the second degree.  (1)  A
 
17 person commits the offense of taking by computer in the second
 
18 degree when the person, without authority, copies any information
 
19 from a computer or computer network.  The person does not have to
 
20 deprive the owner of the use or possession of the material copied
 
21 in order to have committed an offense under this section.
 
22      (2)  Taking by computer in the second degree is a
 
23 misdemeanor.
 

 
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 1      §708-     Computer trespass in the first degree.  (1)  A
 
 2 person commits the offense of computer trespass in the first
 
 3 degree if the person intentionally and, without authorization or
 
 4 exceeding the scope of authorization:
 
 5      (a)  Temporarily or permanently removes, halts, or otherwise
 
 6           disables any computer data, computer program, or
 
 7           computer software from a computer or computer network;
 
 8      (b)  Causes a computer to malfunction, regardless of how
 
 9           long the malfunction persists;
 
10      (c)  Alters or erases any computer data, computer program,
 
11           or computer software;
 
12      (d)  Effects the creation or alteration of a financial
 
13           instrument or of an electronic transfer of funds;
 
14      (e)  Causes physical injury to the property of another;
 
15      (f)  Makes or causes to be made an unauthorized copy, in any
 
16           form, including, but not limited to, any printed or
 
17           electronic form of computer data, computer program, or
 
18           computer software residing in, communicated by, or
 
19           produced by a computer or computer network; or
 
20      (g)  Falsifies or forges electronic mail transmission
 
21           information or other routing information in any manner
 
22           in connection with the transmission of unsolicited bulk
 
23           electronic mail through or into the computer network of
 

 
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 1           an electronic mail service provider or its subscriber.
 
 2      (2)  Computer trespass in the first degree is a felony.
 
 3      §708-     Computer trespass in the second degree.  (1)  A
 
 4 person commits the offense of computer trespass in the second
 
 5 degree if the person intentionally and, without or exceeding
 
 6 authorization, accesses the computer of another.
 
 7      (2)  Computer trespass in the second degree is a
 
 8 misdemeanor.
 
 9      §708-     Unlawful distribution.  (1)  A person commits the
 
10 offense of unlawful distribution if the person knowingly:
 
11      (a)  Sells, gives, or otherwise distributes or possesses
 
12           with the intent to sell, give, or distribute computer
 
13           software which:
 
14           (i)  Is primarily designed or produced for the purpose
 
15                of facilitating or enabling the falsification of
 
16                electronic mail transmission information or other
 
17                routing information;
 
18          (ii)  Has only limited commercially significant purpose
 
19                or use other than to facilitate or enable the
 
20                falsification of electronic mail transmission
 
21                information or other routing information; or
 
22         (iii)  Is marketed by that person or another acting in
 
23                concert with that person with that person's
 

 
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 1                knowledge for use in facilitating or enabling the
 
 2                falsification of electronic mail transmission
 
 3                information or other routing information;
 
 4      (b)  Distributes or makes available passwords not the
 
 5           person's own; or
 
 6      (c)  Distributes or makes available information obtained by
 
 7           computer trespass.
 
 8      (2)  Unlawful distribution is a felony.
 
 9      §708-     Unsolicited email, service providers.  Nothing in
 
10 this part shall be construed to interfere with or prohibit terms
 
11 or conditions in a contract or license related to computers,
 
12 computer data, computer networks, computer operations, computer
 
13 programs, computer services, or computer software or to create
 
14 any liability by reason of terms or conditions adopted by, or
 
15 technical measures implemented by, a Hawaii-based electronic mail
 
16 service provider to prevent the transmission of unsolicited
 
17 electronic mail in violation of this article.
 
18      §708-     Computer invasion of privacy.  (1)  A person
 
19 commits the crime of computer invasion of privacy when the person
 
20 uses a computer or computer network and intentionally examines,
 
21 without or exceeding authority, any employment, salary, credit or
 
22 any other financial or personal information relating to any other
 
23 person.  "Examination" under this section requires the offender
 

 
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 1 to review the information relating to any other person after the
 
 2 time at which the offender knows or should know that the offender
 
 3 is without authority, or exceeding the offender's authority, to
 
 4 view the information displayed.
 
 5      (2)  Computer invasion of privacy is a misdemeanor.
 
 6      §708-     Venue.  For the purpose of venue under this
 
 7 article, any violation of this article shall be considered to
 
 8 have been committed in any county in which: 
 
 9      (a)  Any act was performed in furtherance of any course of
 
10           conduct which violated this article;
 
11      (b)  The owner has the owner's principal place of business
 
12           in the State;
 
13      (c)  Any offender had control or possession of any proceeds
 
14           of the violation or of any books, records, documents,
 
15           property, financial instrument, computer software,
 
16           computer program, computer data, or other material or
 
17           objects which were used in furtherance of the
 
18           violation;
 
19      (d)  From which, to which, or through which any access to a
 
20           computer or computer network was made whether by wires,
 
21           electromagnetic waves, microwaves, or any other means
 
22           of communication; 
 
23      (e)  The offender resides; or
 

 
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 1      (f)  Any computer which is an object or an instrument of the
 
 2           violation is located at the time of the alleged
 
 3           offense.
 
 4      §708-     Civil relief; damages.  (1)  Any person whose
 
 5 property or person is injured by reason of a violation of any
 
 6 provision of this part may sue and recover any damages sustained,
 
 7 including all costs of the suit.  "Damages" includes loss of
 
 8 profits and reasonable expenses incurred in checking the computer
 
 9 system to determine the extent of damage, if any, by the
 
10 defendant.
 
11      (2)  If the injury arises from the transmission of
 
12 unsolicited bulk electronic mail, the injured person, other than
 
13 an electronic mail service provider, may also recover attorneys'
 
14 fees and costs, and may elect, in lieu of actual damages, to
 
15 recover the lesser of $10 for each and every unsolicited bulk
 
16 electronic mail message transmitted in violation of this article,
 
17 or $25,000 per day.  The injured person shall not have a cause of
 
18 action against the electronic mail service provider which merely
 
19 transmits the unsolicited bulk electronic mail over its computer
 
20 network.
 
21      (3)   If the injury arises from the transmission of
 
22 unsolicited bulk electronic mail, an injured electronic mail
 
23 service provider may also recover attorneys' fees and costs, and
 

 
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 1 may elect, in lieu of actual damages, to recover the greater of
 
 2 $10 for each and every unsolicited bulk electronic mail message
 
 3 transmitted in violation of this article, or $25,000 per day.
 
 4      (4)  At the request of any party to an action brought
 
 5 pursuant to this section, the court, in its discretion, may
 
 6 conduct all legal proceedings in such a way as to protect the
 
 7 secrecy and security of the computer, computer network, computer
 
 8 data, computer program, and computer software involved in order
 
 9 to prevent possible recurrence of the same or a similar act by
 
10 another person and to protect any trade secrets of any party.
 
11      (5)  The provisions of this article shall not be construed
 
12 to limit any person's right to pursue any additional civil remedy
 
13 otherwise allowed by law.
 
14      (6) A civil action under this section must be commenced
 
15 before expiration of the time period prescribed for the criminal
 
16 action.  In actions alleging injury arising from the transmission
 
17 of unsolicited bulk electronic mail, personal jurisdiction may be
 
18 exercised pursuant to this part.
 
19      §708-     Definitions.  For purposes of this part:
 
20      "Computer" means an electronic, magnetic, optical, hydraulic
 
21 or organic device or group of devices which, pursuant to a
 
22 computer program, to human instruction, or to permanent
 
23 instructions contained in the device or group of devices, can
 

 
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 1 automatically perform computer operations with or on computer
 
 2 data and can communicate the results to another computer or to a
 
 3 person.  The term "computer" includes any connected or directly
 
 4 related device, equipment, or facility which enables the computer
 
 5 to store, retrieve or communicate computer programs, computer
 
 6 data or the results of computer operations to or from a person,
 
 7 another computer or another device.
 
 8      "Computer data" means any representation of information,
 
 9 knowledge, facts, concepts, or instructions which is being
 
10 prepared or has been prepared and is intended to be processed, is
 
11 being processed, or has been processed in a computer or computer
 
12 network.  "Computer data" may be in any form, whether readable
 
13 only by a computer or only by a human or by either, including,
 
14 but not limited to, computer printouts, magnetic storage media,
 
15 punched cards, or stored internally in the memory of the
 
16 computer.
 
17      "Computer network" means a set of related, remotely
 
18 connected devices and any communications facilities including
 
19 more than one computer with the capability to transmit data among
 
20 them through the communications facilities.
 
21      "Computer operation" means arithmetic, logical, monitoring,
 
22 storage or retrieval functions and any combination thereof, and
 
23 includes, but is not limited to, communication with, storage of
 

 
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 1 data to, or retrieval of data from any device or human hand
 
 2 manipulation of electronic or magnetic impulses.  A "computer
 
 3 operation" for a particular computer may also be any function for
 
 4 which that computer was generally designed.
 
 5      "Computer program" means an ordered set of data representing
 
 6 coded instructions or statements that, when executed by a
 
 7 computer, causes the computer to perform one or more computer
 
 8 operations.
 
 9      "Computer services" means computer time or services,
 
10 including data processing services, internet services, electronic
 
11 mail services, electronic message services, or information or
 
12 data stored in connection therewith.
 
13      "Computer software" means a set of computer programs,
 
14 procedures and associated documentation concerned with computer
 
15 data or with the operation of a computer, computer program, or
 
16 computer network.
 
17      "Electronic mail service provider" means any person who (i)
 
18 is an intermediary in sending or receiving electronic mail; and
 
19 (ii) provides to end-users of electronic mail services the
 
20 ability to send or receive electronic mail.
 
21      "Financial instrument" includes any check, draft, commercial
 
22 paper, warrant, money order, note, certificate of deposit, letter
 
23 of credit, bill of exchange, credit or debit card, transaction
 

 
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 1 authorization mechanism, marketable security, or any computerized
 
 2 representation thereof.
 
 3      "Owner" means an owner or lessee of a computer or a computer
 
 4 network or an owner, lessee, or licensee of computer data,
 
 5 computer programs, or computer software.
 
 6      "Person" includes any individual, partnership, association,
 
 7 corporation, or joint venture.
 
 8      "Property" includes:
 
 9      (1)  Real property;
 
10      (2)  Computers and computer networks;
 
11      (3)  Financial instruments, computer data, computer
 
12           programs, computer software, and all other personal
 
13           property regardless of whether they are:
 
14           (i)  Tangible or intangible;
 
15          (ii)  In a format readable by humans or by a computer;
 
16         (iii)  In transit between computers or within a computer
 
17                network or between any devices which comprise a
 
18                computer; or 
 
19          (iv)  Located on any paper or in any device on which it
 
20                is stored by a computer or by a human; and 
 
21      (4)  Computer services.
 
22      "Use" means:
 
23      (1)  Attempting to cause or causing a computer or computer
 

 
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 1           network to perform or to stop performing computer
 
 2           operations;
 
 3      (2)  Attempting to cause or causing the withholding or
 
 4           denial of the use of a computer, computer network,
 
 5           computer program, computer data, or computer software
 
 6           to another user; or
 
 7      (3)  Attempting to cause or causing another person to put
 
 8           false information into a computer.
 
 9      "Without or exceeding authority" means:
 
10      (1)  The person has no right or permission of the owner to
 
11           use a computer;
 
12      (2)  The person uses a computer in a manner exceeding such
 
13           right or permission; or
 
14      (3)  The person uses a computer, a computer network, or the
 
15           computer services of an electronic mail service
 
16           provider to transmit unsolicited bulk electronic mail
 
17           in contravention of the authority granted by or in
 
18           violation of the policies set by the electronic mail
 
19           service provider.  Transmission of electronic mail from
 
20           an organization to its members shall not be deemed to
 
21           be unsolicited bulk electronic mail."
 
22      SECTION 3.  Chapter 701, Hawaii Revised Statutes, is amended
 
23 by adding a new section to be appropriately designated and to
 

 
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 1 read as follows:
 
 2      "§701-     Time limitation for computer crimes.
 
 3 Notwithstanding the provisions of section 701-108, prosecution of
 
 4 a crime under chapter 708, part IX, shall be five years."
 
 5      SECTION 4.  Section 708-850, Hawaii Revised Statutes, is
 
 6 amended by adding the definition of "forgery" to read as follows:
 
 7      ""Forgery" includes the creation, alteration, or deletion of
 
 8 any computer data contained in any computer or computer network,
 
 9 which if done on a tangible document or instrument would
 
10 constitute forgery under this part.  The absence of a tangible
 
11 writing directly created or altered by the offender shall not be
 
12 a defense to any crime set forth in this part if a creation,
 
13 alteration, or deletion of computer data was involved in lieu of
 
14 a tangible document or instrument."
 
15      SECTION 5.  Section 708-893, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "[[]§708-893[]]  Entry without disruption.(1)  The court
 
18 may dismiss a prosecution if, having regard to the nature of the
 
19 conduct alleged and nature of the attendant circumstances, it
 
20 finds that the defendant's conduct did not actually cause harm or
 
21 damage to any computer, computer system, computer network, or any
 
22 of its data or software.  As used in this section, "harm"
 
23 includes the copying of data even if the original is left intact.
 

 
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 1      (2)  The court shall not dismiss a prosecution under
 
 2 [[]subsection[]] (1) without filing a written statement of its
 
 3 reasons."
 
 4      SECTION 6.  Section 711-1106.5, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (1) to read as follows:
 
 6      "(1)  A person commits the offense of harassment by stalking
 
 7 if, with intent to harass, annoy, or alarm another person, or in
 
 8 reckless disregard of the risk thereof, that person pursues or
 
 9 conducts surveillance upon the other person:
 
10      (a)  Without legitimate purpose; and
 
11      (b)  Under circumstances which would cause the other person
 
12           to reasonably believe that the actor intends to cause
 
13           bodily injury to the other person or another, or damage
 
14           to the property of the other person or another[.]; or
 
15      (c)  By email, instant messaging, or other repeated computer
 
16           communication without the consent of the victim."
 
17      SECTION 7.  Section 708-890, Hawaii Revised Statutes, is
 
18 repealed.
 
19      ["[§708-890]  Definitions.  As used in this part, unless the
 
20 context otherwise requires:
 
21      "Access" means to gain entry to or communicate with a
 
22 computer, computer system, or computer network.
 
23      "Computer" means any device which performs logical,
 

 
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 1 arithmetic, and memory functions by the manipulation of
 
 2 electronic or magnetic impulses and includes all input, output,
 
 3 processing, storage, software, or communication facilities which
 
 4 are connected or related to such a device in a computer system or
 
 5 computer network.
 
 6      "Computer equipment" or "hardware" means central processing
 
 7 units, microprocessors, data storage and other computer memory
 
 8 devices, and computer terminals or similar devices.
 
 9      "Computer network" means two or more computer systems
 
10 connected so as to permit the exchange or sharing of data between
 
11 or among them.
 
12      "Computer program" or "software" means a set of computer-
 
13 readable instructions or statements which, when executed by a
 
14 computer system, causes the computer system or the computer
 
15 network to which it is connected to perform computer services.
 
16      "Computer services" means data input, data output, data
 
17 processing, or data storage by or in a computer system or
 
18 computer network.
 
19      "Computer system" means computer equipment or hardware
 
20 connected together and operating under the control of one or more
 
21 computer programs.
 
22      "Data" means information stored in a computer system or on
 
23 electronic media or processed in a computer system.
 

 
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 1      "Disruption" means any deviation from normal operations of
 
 2 any computer, computer system, or computer network.
 
 3      "Injury" includes addition, alteration, damage, deletion,
 
 4 destruction, denial of access with respect to data in, or
 
 5 functions of, a computer system or computer network.
 
 6      "Property" includes financial instruments, data, computer
 
 7 software, computer programs, documents associated with computer
 
 8 systems and computer programs, or copies, whether tangible or
 
 9 intangible, and data while in transit.
 
10      "Without authorization" means without the permission of or
 
11 in excess of the permission of an owner, lessor, or rightful user
 
12 or someone licensed or privileged by an owner, lessor, or
 
13 rightful user to grant such permission."]
 
14      SECTION 8.  Section 708-891, Hawaii Revised Statutes, is
 
15 repealed.
 
16      ["[§708-891]  Computer fraud.(1)  A person commits the
 
17 offense of computer fraud if:
 
18      (a)  The person accesses or causes to be accessed any
 
19           computer, computer system, computer network, or any of
 
20           its parts with the intent of devising or executing any
 
21           scheme or artifice to defraud; or
 
22      (b)  The person accesses or causes to be accessed any
 
23           computer, computer system, computer network, or any of
 

 
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 1           its parts with the intent of obtaining money, property,
 
 2           or services by means of embezzlement or false or
 
 3           fraudulent representations; or 
 
 4      (c)  The person, without authorization, accesses or causes
 
 5           to be accessed any computer, computer system, computer
 
 6           network, or any of its parts with the intent of
 
 7           obtaining credit information on another person; or
 
 8      (d)  The person accesses or causes to be accessed any
 
 9           computer, computer system, computer network, or any of
 
10           its parts with the intent of introducing or causing to
 
11           be introduced false information to damage or enhance
 
12           the credit rating of any person.
 
13      (2)  Computer fraud is a class C felony."]
 
14      SECTION 9.  Section 708-892, Hawaii Revised Statutes, is
 
15 repealed.
 
16      ["[708-892]  Unauthorized computer use.  (1)  A person
 
17 commits the offense of unauthorized computer use if the person
 
18 intentionally and without authorization accesses, alters,
 
19 injures, disrupts, damages, or destroys any computer, computer
 
20 system, computer network, computer program, computer software, or
 
21 any data stored therein.
 
22      (2)  Unauthorized computer use is a class C felony."]
 
23      SECTION 10.  There is appropriated out of the general
 

 
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 1 revenues of the State of Hawaii the sum of $       , or so much
 
 2 thereof as may be necessary for fiscal year 2000-2001, for two
 
 3 investigator positions within the department of the attorney
 
 4 general specializing in the prosecution of computer crimes.
 
 5 These investigators shall divide their time supporting the county
 
 6 prosecutors' offices, taking into consideration the amount of
 
 7 computer crimes in each county.
 
 8      SECTION 11.  The sum appropriated shall be expended by the
 
 9 department of the attorney general for the purposes of this Act.
 
10      SECTION 12.  This Act does not affect rights and duties that
 
11 matured, penalties that were incurred, and proceedings that were
 
12 begun, before its effective date.
 
13      SECTION 13.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 14.  This Act shall take effect on July 1, 2000.
 
16 
 
17                           INTRODUCED BY:  _______________________