REPORT TITLE:
Computer Crimes


DESCRIPTION:
Creates offenses of computer fraud in the first degree as a class
B felony, computer fraud in the second degree as a class C
felony, computer damage in the first degree as a class B felony
and computer damage in the second degree as a class C felony.
Allows for forfeiture of property used in commission of these
computer crimes.  Extends jurisdiction over defendants committing
computer crimes beyond Hawaii.  Extends the statute of limitation
for these crimes to five years.  Amends the definition of
extortion to include threats of damaging someone's computer.
Repeals the present computer fraud statute and the present entry
without disruption statute and replaces them with three grades of
offenses of unauthorized computer access. Establishes temporary
advisory commission on computer crimes laws.  (SB2352 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2352
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                H.D. 1
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.  Chapter 708, Hawaii Revised Statutes, is
 
 2 amended by adding to part IX six new sections to be appropriately
 
 3 designated and to read as follows:
 
 4      "§708-     Computer fraud in the first degree.  (1)  A
 
 5 person commits the offense of computer fraud in the first degree
 
 6 if the person knowingly, and with intent to defraud, accesses a
 
 7 computer without authorization and, by means of such conduct,
 
 8 obtains or exerts control over the property of another.
 
 9      (2)  In a prosecution for computer fraud in the first
 
10 degree, it is a defense that the object of the fraud and the
 
11 property obtained consists only of the use of the computer and
 
12 the value of such use is not more than $300 in any one-year
 
13 period.
 
14      (3)  Computer fraud in the first degree is a class B felony.
 
15      §708-     Computer fraud in the second degree.  (1)  A
 
16 person commits the offense of computer fraud in the second degree
 
17 if the person knowingly, and with the intent to defraud,
 
18 transfers, or otherwise disposes of, to another, or obtains
 
19 control of, with the intent to transfer or dispose of, any
 

 
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 1 password or similar information through which a computer,
 
 2 computer system, or computer network may be accessed.
 
 3 ,    (2)  Computer fraud in the second degree is a class C
 
 4 felony.
 
 5      §708-     Computer damage in the first degree.  (1)  A
 
 6 person commits the offense of computer damage in the first degree
 
 7 if:
 
 8      (a)  The person intentionally or knowingly causes the
 
 9           transmission of a program, information, code, or
 
10           command, and thereby intentionally causes unauthorized
 
11           damage to a computer, computer system, or computer
 
12           network; or
 
13      (b)  The person intentionally or knowingly accesses a
 
14           computer, computer system, or computer network without
 
15           authorization and thereby intentionally or knowingly
 
16           causes damage.
 
17      (2)  As used in this section, the "damage" must:
 
18      (a)  Result in a loss aggregating at least $5,000 in value,
 
19           including the costs associated with diagnosis, repair,
 
20           replacement, or remediation, during any one-year period
 
21           to one or more individuals; or
 
22      (b)  Result in the modification or impairment, or potential
 
23           modification or impairment, of the medical examination,
 

 
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 1           diagnosis, treatment, or care of one or more
 
 2           individuals; or
 
 3      (c)  Result in physical injury to any person; or
 
 4      (d)  Threaten public health or safety; or
 
 5      (e)  Impair the administration of justice.
 
 6      (3)  Computer damage in the first degree is a class B
 
 7 felony.
 
 8      §708-     Computer damage in the second degree.  (1)  A
 
 9 person commits the offense of computer damage in the second
 
10 degree if the person intentionally or knowingly accesses a
 
11 computer, computer system, or computer network without
 
12 authorization and thereby knowingly, recklessly, or negligently
 
13 causes damage.
 
14      (2)  Computer damage in the second degree is a class C
 
15 felony.
 
16      §708-     Forfeiture of property used in computer crimes.
 
17 Any property used or intended for use in the commission of,
 
18 attempt to commit, or conspiracy to commit an offense under this
 
19 part, or which facilitated or assisted such activity, shall be
 
20 forfeited subject to the requirements of chapter 712A.
 
21      §708-     Jurisdiction.  For purposes of prosecution under
 
22 this part, a person who causes, by any means, the access of a
 
23 computer, computer system, or computer network in one
 

 
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 1 jurisdiction from another jurisdiction is deemed to have
 
 2 personally accessed the computer, computer system, or computer
 
 3 network in each jurisdiction."
 
 4      SECTION 2.  Section 701-108, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (2) to read as follows:
 
 6      "(2)  Except as otherwise provided in this section,
 
 7 prosecutions for other offenses are subject to the following
 
 8 periods of limitation:
 
 9      (a)  A prosecution for manslaughter where the death was not
 
10           caused by the operation of a motor vehicle must be
 
11           commenced within ten years after it is committed;
 
12      (b)  A prosecution for a class A felony must be commenced
 
13           within six years after it is committed;
 
14      (c)  A prosecution for any felony under part IX of chapter
 
15           708 must be commenced within five years after it is
 
16           committed;
 
17     [(c)] (d)  A prosecution for any other felony must be
 
18           commenced within three years after it is committed;
 
19     [(d)] (e)  A prosecution for a misdemeanor or parking
 
20           violation must be commenced within two years after it
 
21           is committed;
 
22     [(e)] (f)  A prosecution for a petty misdemeanor or a
 
23           violation other than a parking violation must be
 
24           commenced within one year after it is committed."
 

 
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 1      SECTION 3.  Section 707-764, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "[[]§707-764[]]  Extortion.  A person commits extortion if
 
 4 he does any of the following:
 
 5      (1)  Obtains, or exerts control over, the property or
 
 6           services of another with intent to deprive him of the
 
 7           property or services by threatening by word or conduct
 
 8           to:
 
 9           (a)  Cause bodily injury in the future to the person
 
10                threatened or to any other person; or
 
11           (b)  Cause damage to property[;] or cause damage, as
 
12                defined in section 708-890, to a computer,
 
13                computer system, or computer network; or
 
14           (c)  Subject the person threatened or any other person
 
15                to physical confinement or restraint; or
 
16           (d)  Commit a penal offense; or
 
17           (e)  Accuse some person of any offense or cause a penal
 
18                charge to be instituted against some person; or
 
19           (f)  Expose a secret or publicize an asserted fact,
 
20                whether true or false, tending to subject some
 
21                person to hatred, contempt, or ridicule, or to
 
22                impair his credit or business repute; or
 

 
 
 
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 1           (g)  Reveal any information sought to be concealed by
 
 2                the person threatened or any other person; or
 
 3           (h)  Testify or provide information or withhold
 
 4                testimony or information with respect to another's
 
 5                legal claim or defense; or
 
 6           (i)  Take or withhold action as a public servant, or
 
 7                cause a public servant to take or withhold such
 
 8                action; or
 
 9           (j)  Bring about or continue a strike, boycott, or
 
10                other similar collective action, to obtain
 
11                property which is not demanded or received for the
 
12                benefit of the group which the defendant purports
 
13                to represent; or
 
14           (k)  Do any other act which would not in itself
 
15                substantially benefit the defendant but which is
 
16                calculated to harm substantially some person with
 
17                respect to his health, safety, business, calling,
 
18                career, financial condition, reputation, or
 
19                personal relationships; or
 
20      (2)  Intentionally compels or induces another person to
 
21           engage in conduct from which he has a legal right to
 
22           abstain or to abstain from conduct in which he has a
 
23           legal right to engage by threatening by word or conduct
 

 
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 1           to do any of the actions set forth in [paragraphs (a)]
 
 2           paragraph (1)(a) through (k) of this section; or
 
 3      (3)  Makes or finances any extortionate extension of
 
 4           credit, or collects any extension of credit by
 
 5           extortionate means."
 
 6      SECTION 4.  Section 708-890, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "[[]§708-890[]]  Definitions.  As used in this part, unless
 
 9 the context otherwise requires:
 
10      "Access" means to gain entry to [or], instruct, communicate
 
11 with, store data in, retrieve data from, or otherwise make use of
 
12 any resources of a computer, computer system, or computer
 
13 network.
 
14      "Computer" means any [device which performs logical,
 
15 arithmetic, and memory functions by the manipulation of
 
16 electronic or magnetic impulses and includes all input, output,
 
17 processing, storage, software, or communication facilities which
 
18 are connected or related to such a device in a computer system or
 
19 computer network.] electronic, magnetic, optical,
 
20 electrochemical, or other high-speed data processing device
 
21 performing logical, arithmetic, or storage functions, and
 
22 includes all computer equipment connected or related to such a
 
23 device in a computer system or computer network, but such term
 

 
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 1 does not include an automated typewriter or typesetter, a
 
 2 portable hand-held calculator, or other similar device.
 
 3      "Computer equipment" [or "hardware" means central processing
 
 4 units, microprocessors, data storage and other computer memory
 
 5 devices, and computer terminals or similar devices.] means any
 
 6 equipment or devices, including all input, output, processing,
 
 7 storage, software, or communications facilities, intended to
 
 8 interface with the computer.
 
 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.] computers or computer systems, interconnected by
 
12 communication lines, including microwave, electronic, or any
 
13 other form of communication.
 
14      "Computer program" or "software" means a set of computer-
 
15 readable instructions or statements [which,] and related data
 
16 that, when executed by a computer system, causes the computer
 
17 system or the computer network to which it is connected to
 
18 perform computer services.
 
19      "Computer services" [means data input, data output, data
 
20 processing, or data storage by or in a computer system or
 
21 computer network.] includes, but is not limited to, the use of a
 
22 computer system, computer network, computer program, data
 

 
 
 
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 1 prepared for computer use, and data contained within a computer
 
 2 system or computer network.
 
 3      "Computer system" means [computer equipment or hardware
 
 4 connected together and operating under the control of one or more
 
 5 computer programs.] a set of interconnected computer equipment
 
 6 intended to operate as a cohesive system.
 
 7      "Damage" means any impairment to the integrity or
 
 8 availability of data, a program, a system, a network, or computer
 
 9 services.
 
10      "Data" means information [stored in a computer system or on
 
11 electronic media or processed in a computer system.], facts,
 
12 concepts, software, or instructions prepared for use in a
 
13 computer, computer system, or computer network.
 
14      ["Disruption" means any deviation from normal operations of
 
15 any computer, computer system, or computer network.
 
16      "Injury" includes addition, alteration, damage, deletion,
 
17 destruction, denial of access with respect to data in, or
 
18 functions of, a computer system or computer network.]
 
19      "Obtain information" includes mere observation of the data.
 
20      "Property" includes financial instruments, data, computer
 
21 software, computer programs, documents associated with computer
 
22 systems [and computer programs, or copies, whether tangible or
 

 
 
 
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 1 intangible, and data while in transit.], money, computer
 
 2 services, or anything else of value.
 
 3      "Rule of court" means any rule adopted by the supreme court
 
 4 of this State, the Federal Rules of Civil Procedure, or the
 
 5 Federal Rules of Criminal Procedure.
 
 6      "Statute" means any statute of this State or the federal
 
 7 government.
 
 8      "Without authorization" means without the permission of or
 
 9 in excess of the permission of an owner, lessor, or rightful user
 
10 or someone licensed or privileged by an owner, lessor, or
 
11 rightful user to grant such permission."
 
12      SECTION 5.  Section 708-891, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "[[]§708-891[]  Computer fraud.(1)  A person commits the
 
15 offense of computer fraud if:
 
16      (a)  The person accesses or causes to be accessed any
 
17           computer, computer system, computer network, or any of
 
18           its parts with the intent of devising or executing any
 
19           scheme or artifice to defraud; or
 
20      (b)  The person accesses or causes to be accessed any
 
21           computer, computer system, computer network, or any of
 
22           its parts with the intent of obtaining money, property,
 

 
 
 
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 1           or services by means of embezzlement or false or
 
 2           fraudulent representations; or
 
 3      (c)  The person, without authorization, accesses or causes
 
 4           to be accessed any computer, computer system, computer
 
 5           network, or any of its parts with the intent of
 
 6           obtaining credit information on another person; or
 
 7      (d)  The person accesses or causes to be accessed any
 
 8           computer, computer system, computer network, or any of
 
 9           its parts with the intent of introducing or causing to
 
10           be introduced false information to damage or enhance
 
11           the credit rating of any person.
 
12      (2)  Computer fraud is a class C felony.] Unauthorized
 
13 computer access in the first degree.  (1)  A person commits the
 
14 offense of unauthorized computer access in the first degree if
 
15 the person intentionally or knowingly accesses a computer,
 
16 computer system, or computer network without authorization and
 
17 thereby obtains information, and:
 
18      (a)  The offense was committed for the purpose of commercial
 
19           or private financial gain; or
 
20      (b)  The offense was committed in furtherance of any other
 
21           crime; or
 
22      (c)  The value of the information obtained exceeds $5,000;
 
23           or
 

 
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 1      (d)  The information has been determined by statute or rule
 
 2           of court to require protection against unauthorized
 
 3           disclosure.
 
 4      (2)  Unauthorized computer access in the first degree is a
 
 5 class B felony."
 
 6      SECTION 6.  Section 708-892, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "[[]§708-892[]  Unauthorized computer use.(1)  A person
 
 9 commits the offense of unauthorized computer use if the person
 
10 intentionally and without authorization accesses, alters,
 
11 injures, disrupts, damages, or destroys any computer, computer
 
12 system, computer network, computer program, computer software, or
 
13 any data stored therein.
 
14      (2)  Unauthorized computer use is a class C felony.]
 
15 Unauthorized computer access in the second degree.  (1)  A person
 
16 commits the offense of unauthorized computer access in the second
 
17 degree if the person intentionally or knowingly accesses a
 
18 computer, computer system, or computer network without
 
19 authorization and thereby obtains information.
 
20      (2)  Unauthorized computer access in the second degree is a
 
21 class C felony."
 
22      SECTION 7.  Section 708-893, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "[[]§708-893[]  Entry without disruption.(1)  The court
 
 2 may dismiss a prosecution if, having regard to the nature of the
 
 3 conduct alleged and nature of the attendant circumstances, it
 
 4 finds that the defendant's conduct did not actually cause harm or
 
 5 damage to any computer, computer system, computer network, or any
 
 6 of its data or software.
 
 7      (2)  The court shall not dismiss a prosecution under
 
 8 [subsection] (1) without filing a written statement of its
 
 9 reasons.]  Unauthorized computer access in the third degree.  (1)
 
10 A person commits the offense of unauthorized computer access in
 
11 the third degree if the person intentionally or knowingly
 
12 accesses a computer, computer system, or computer network without
 
13 authorization.
 
14      (2)  Unauthorized computer access in the third degree is a
 
15 misdemeanor."
 
16      SECTION 8.  There is established within the department of
 
17 the attorney general for administrative purposes only, a
 
18 temporary advisory commission on computer crimes laws.
 
19      The commission shall form a working committee to conduct a
 
20 comprehensive review of the Hawaii penal code concerning the
 
21 prosecution of computer crimes, for the purpose of recommending
 
22 necessary amendments to the code to comprehensively prosecute
 

 
 
 
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 1 computer crimes without inhibiting legitimate computer
 
 2 activities.
 
 3      The commission may include as members, representatives from
 
 4 the information and communication services division of the
 
 5 department of accounting and general services, University of
 
 6 Hawaii department of information technology services, department
 
 7 of the attorney general, the prosecuting attorneys, the county
 
 8 police departments, private citizens concerned with computer
 
 9 crimes, computer professionals from both business and academia
 
10 knowledgeable, the office of the public defender, and Hawaii
 
11 attorneys in private practice who handle criminal cases.  Members
 
12 of the committee should be selected based on knowledge and
 
13 experience in criminal law, law enforcement and computer
 
14 technology.
 
15      The commission shall meet no later than September 1, 2000,
 
16 and on a regular basis thereafter as necessary to carry out the
 
17 purpose of commission.  The commission shall prepare a
 
18 comprehensive report of findings and recommendations for action.
 
19 The commission shall transmit copies of their report to the
 
20 legislature, the attorney general, the prosecuting attorneys and
 
21 the public defender no later than twenty days before the
 
22 convening of the Regular Session of 2002.
 

 
 
 
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 1      SECTION 9.  This Act does not affect rights and duties that
 
 2 matured, penalties that were incurred, and proceedings that were
 
 3 begun, before its effective date.
 
 4      SECTION 10.  Statutory material to be repealed is bracketed.
 
 5 New statutory material is underscored.
 
 6      SECTION 11.  This Act shall take effect upon its approval.