REPORT TITLE:
Computer Crimes


DESCRIPTION:
Repeals existing law and expands computer crimes.  Provides for
civil actions based on the computer crimes.  (SB2352 SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2352
THE SENATE                              S.B. NO.           S.D. 2
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, based on Virginia law.
 
 8      SECTION 2.  Chapter 708, Hawaii Revised Statutes, is amended
 
 9 by adding fourteen new sections to part IX to be appropriately
 
10 designated and to read as follows:
 
11      "§708-     Definitions.  For purposes of this part:
 
12      "Computer" means an electronic, magnetic, optical, hydraulic
 
13 or organic device or group of devices which, pursuant to a
 
14 computer program, to human instruction, or to permanent
 
15 instructions contained in the device or group of devices, can
 
16 automatically perform computer operations with or on computer
 
17 data and can communicate the results to another computer or to a
 
18 person.  The term "computer" includes any connected or directly
 
19 related device, equipment, or facility which enables the computer
 

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

 
 
 
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 1 which that computer was generally designed.
 
 2      "Computer program" means an ordered set of data representing
 
 3 coded instructions or statements that, when executed by a
 
 4 computer, causes the computer to perform one or more computer
 
 5 operations.
 
 6      "Computer services" means computer time or services,
 
 7 including data processing services, internet services, electronic
 
 8 mail services, electronic message services, or information or
 
 9 data stored in connection therewith.
 
10      "Computer software" means a set of computer programs,
 
11 procedures and associated documentation concerned with computer
 
12 data or with the operation of a computer, computer program, or
 
13 computer network.
 
14      "Electronic mail service provider" means any person who (i)
 
15 is an intermediary in sending or receiving electronic mail; and
 
16 (ii) provides to end-users of electronic mail services the
 
17 ability to send or receive electronic mail.
 
18      "Encryption" means the enciphering of intelligible data into
 
19 unintelligible form or the deciphering of unintelligible data
 
20 into intelligible form.
 
21      "Financial instrument" includes any check, draft, commercial
 
22 paper, warrant, money order, note, certificate of deposit, letter
 

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

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

 
 
 
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 1           be unsolicited bulk electronic mail.
 
 2      §708-     Computer fraud in the first degree.  (1)  A person
 
 3 commits the offense of computer fraud in the first degree if the
 
 4 person uses a computer or computer network without or in excess
 
 5 of authority and with the intent to:
 
 6      (a)  Obtain property or services valued at more than $200 by
 
 7           false pretenses;
 
 8      (b)  Devise or execute any scheme or artifice to defraud;
 
 9      (c)  Damage or enhance the credit rating of any person; or
 
10      (d)  Impersonate another.
 
11      (2) Computer fraud is a class C felony, unless, under
 
12 paragraph (a), the value of the property or services obtained is
 
13 less than $200, in which case it shall be a misdemeanor.
 
14      §708-     Computer fraud in the second degree.  (1)  A
 
15 person commits the offense of computer fraud in the second degree
 
16 if the person uses a computer or computer network without or in
 
17 excess of authority and with the intent to obtain property or
 
18 services valued at less than $200.
 
19      (2)  Computer fraud in the second degree is a misdemeanor.
 
20      §708-     Computer forgery.  (1)  A person commits the
 
21 offense of computer forgery when the person creates, alters, or
 
22 deletes any computer data contained in any computer or computer
 

 
 
 
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 1 network, which if done on a written document or instrument would
 
 2 constitute forgery under chapter 708, part VI.  The absence of a
 
 3 tangible writing directly created or altered by the offender
 
 4 shall not be a defense.
 
 5      (2)  Computer forgery is a class C felony.
 
 6      §708-     Computer trespass in the first degree.  (1)  A
 
 7 person commits the offense of computer trespass in the first
 
 8 degree if the person intentionally and, without authorization or
 
 9 exceeding the scope of authorization:
 
10      (a)  Temporarily or permanently removes, halts, or otherwise
 
11           disables any computer data, computer program, or
 
12           computer software from a computer or computer network;
 
13      (b)  Causes a computer to malfunction, regardless of how
 
14           long the malfunction persists;
 
15      (c)  Alters or erases any computer data, computer program,
 
16           or computer software;
 
17      (d)  Effects the creation or alteration of a financial
 
18           instrument or of an electronic transfer of funds;
 
19      (e)  Causes physical injury to the property of another;
 
20      (f)  Makes or causes to be made an unauthorized copy, in any
 
21           form, including, but not limited to, any printed or
 
22           electronic form of computer data, computer program, or
 

 
 
 
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 1           computer software residing in, communicated by, or
 
 2           produced by a computer or computer network; or
 
 3      (g)  Falsifies or forges electronic mail transmission
 
 4           information or other routing information in any manner
 
 5           in connection with the transmission of unsolicited bulk
 
 6           electronic mail through or into the computer network of
 
 7           an electronic mail service provider or its subscriber.
 
 8      (2)  Computer trespass in the first degree is a class C
 
 9 felony.
 
10      §708-     Computer trespass in the second degree.  (1)  A
 
11 person commits the offense of computer trespass in the second
 
12 degree if the person intentionally and, without or exceeding
 
13 authorization, accesses the computer of another.
 
14      (2)  Computer trespass in the second degree is a
 
15 misdemeanor.
 
16      §708-     Unlawful distribution.  (1)  A person commits the
 
17 offense of unlawful distribution if the person knowingly:
 
18      (a)  Sells, gives, or otherwise distributes or possesses
 
19           with the intent to sell, give, or distribute computer
 
20           software which:
 
21           (i)  Is primarily designed or produced for the purpose
 
22                of facilitating or enabling the falsification of
 

 
 
 
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 1                electronic mail transmission information or other
 
 2                routing information;
 
 3          (ii)  Has only limited commercially significant purpose
 
 4                or use other than to facilitate or enable the
 
 5                falsification of electronic mail transmission
 
 6                information or other routing information; or
 
 7         (iii)  Is marketed by that person or another acting in
 
 8                concert with that person with that person's
 
 9                knowledge for use in facilitating or enabling the
 
10                falsification of electronic mail transmission
 
11                information or other routing information;
 
12      (b)  Distributes or makes available passwords not the
 
13           person's own; or
 
14      (c)  Distributes or makes available information obtained by
 
15           computer trespass.
 
16      (2)  Unlawful distribution is a class C felony.
 
17      §708-     Theft of computer services.  A person commits the
 
18 offense of theft of computer service when the person willfully
 
19 uses a computer or computer network, with intent to obtain
 
20 computer services without authority.  Theft of computer services
 
21 is a misdemeanor.
 
22      §708-     Personal trespass by computer in the first degree.
 

 
 
 
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 1 (1)  A person commits the offense of personal trespass by
 
 2 computer in the first degree if the person uses a computer or
 
 3 computer network without authority and with the intent to cause
 
 4 physical injury to an individual.
 
 5      (2)  Personal trespass by computer in the first degree is a
 
 6 class C felony.
 
 7      §708-     Personal trespass by computer in the second
 
 8 degree.  (1)  A person commits the offense of personal trespass
 
 9 by computer in the second degree if the person uses a computer or
 
10 computer network without authority and causes physical injury to
 
11 an individual.
 
12      (2)  Personal trespass by computer in the second degree is a
 
13 misdemeanor.
 
14      §708-     Computer invasion of privacy.  (1)  A person
 
15 commits the crime of computer invasion of privacy when the person
 
16 uses a computer or computer network and intentionally examines,
 
17 without or in excess of authority, any employment, salary, credit
 
18 or any other financial or personal information relating to any
 
19 other person.  "Examination" under this section requires the
 
20 offender to review the information relating to any other person
 
21 after the time at which the offender knows or should know that
 
22 the offender is without authority, or exceeding the offender's
 

 
 
 
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 1 authority, to view the information displayed.
 
 2      (2)  Computer invasion of privacy is a misdemeanor.
 
 3      §708-     Encryption used in criminal activity.  Any person
 
 4 who willfully uses encryption to further any criminal activity
 
 5 shall be guilty of an offense which is separate and distinct from
 
 6 the predicate criminal activity and punishable as a misdemeanor.
 
 7      §708-     Civil relief; damages.  (1)  Any person whose
 
 8 property or person is injured by reason of a violation of any
 
 9 provision of this part may sue and recover any damages sustained,
 
10 including all costs of the suit.  "Damages" includes loss of
 
11 profits and reasonable expenses incurred in checking the computer
 
12 system to determine the extent of damage, if any, caused by the
 
13 defendant.
 
14      (2)  If the injury arises from the transmission of
 
15 unsolicited bulk electronic mail, the injured person, other than
 
16 an electronic mail service provider, may also recover attorneys'
 
17 fees and costs, and may elect, in lieu of actual damages, to
 
18 recover the lesser of $10 for each and every unsolicited bulk
 
19 electronic mail message transmitted in violation of this part, or
 
20 $25,000 per day.  The injured person shall not have a cause of
 
21 action against the electronic mail service provider which merely
 
22 transmits the unsolicited bulk electronic mail over its computer
 

 
 
 
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 1 network.
 
 2      (3)  If the injury arises from the transmission of
 
 3 unsolicited bulk electronic mail, an injured electronic mail
 
 4 service provider may also recover attorneys' fees and costs, and
 
 5 may elect, in lieu of actual damages, to recover the greater of
 
 6 $10 for each and every unsolicited bulk electronic mail message
 
 7 transmitted in violation of this part, or $25,000 per day.
 
 8      (4)  At the request of any party to an action brought
 
 9 pursuant to this section, the court, in its discretion, may
 
10 conduct all legal proceedings in such a way as to protect the
 
11 secrecy and security of the computer, computer network, computer
 
12 data, computer program, and computer software involved in order
 
13 to prevent possible recurrence of the same or a similar act by
 
14 another person and to protect any trade secrets of any party.
 
15      (5)  The provisions of this part shall not be construed to
 
16 limit any person's right to pursue any additional civil remedy
 
17 otherwise allowed by law.
 
18      (6)  A civil action under this section must be commenced
 
19 before expiration of the time period prescribed for the criminal
 
20 action.  In actions alleging injury arising from the transmission
 
21 of unsolicited bulk electronic mail, personal jurisdiction may be
 
22 exercised pursuant to this part.
 

 
 
 
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 1      §708-     Venue.  For the purpose of venue under this part,
 
 2 any violation of this part shall be considered to have been
 
 3 committed in any county in which:
 
 4      (a)  Any act was performed in furtherance of any course of
 
 5           conduct which violated this part;
 
 6      (b)  The owner has the owner's principal place of business
 
 7           in the State;
 
 8      (c)  Any offender had control or possession of any proceeds
 
 9           of the violation or of any books, records, documents,
 
10           property, financial instrument, computer software,
 
11           computer program, computer data, or other material or
 
12           objects which were used in furtherance of the
 
13           violation;
 
14      (d)  From which, to which, or through which any access to a
 
15           computer or computer network was made whether by wires,
 
16           electromagnetic waves, microwaves, or any other means
 
17           of communication;
 
18      (e)  The offender resides; or
 
19      (f)  Any computer which is an object or an instrument of the
 
20           violation is located at the time of the alleged
 
21           offense.
 
22      §708-     Part not exclusive.  The provisions of this part
 

 
 
 
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 1 shall not be construed to preclude the applicability of any other
 
 2 provision of the criminal law of the State."
 
 3      SECTION 3.  Chapter 701, Hawaii Revised Statutes, is amended
 
 4 by adding a new section to be appropriately designated and to
 
 5 read as follows:
 
 6      "§701-     Time limitation for computer crimes.
 
 7 Notwithstanding the provisions of section 701-108, prosecution of
 
 8 a crime under chapter 708, part IX, shall be five years."
 
 9      SECTION 4.  Section 711-1106.5, Hawaii Revised Statutes, is
 
10 amended by amending subsection (1) to read as follows:
 
11      "(1)  A person commits the offense of harassment by stalking
 
12 if, with intent to harass, annoy, or alarm another person, or in
 
13 reckless disregard of the risk thereof, that person pursues or
 
14 conducts surveillance upon the other person:
 
15      (a)  Without legitimate purpose; and
 
16      (b)  Under circumstances which would cause the other person
 
17           to reasonably believe that the actor intends to cause
 
18           bodily injury to the other person or another, or damage
 
19           to the property of the other person or another[.]; or
 
20      (c)  By email, instant messaging, or other repeated computer
 
21           communication without the consent of the victim."
 
22      SECTION 5.  Section 708-890, Hawaii Revised Statutes, is
 

 
 
 
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 1 repealed.
 
 2      ["[§708-890]  Definitions.  As used in this part, unless the
 
 3 context otherwise requires:
 
 4      "Access" means to gain entry to or communicate with a
 
 5 computer, computer system, or computer network.
 
 6      "Computer" means any device which performs logical,
 
 7 arithmetic, and memory functions by the manipulation of
 
 8 electronic or magnetic impulses and includes all input, output,
 
 9 processing, storage, software, or communication facilities which
 
10 are connected or related to such a device in a computer system or
 
11 computer network.
 
12      "Computer equipment" or "hardware" means central processing
 
13 units, microprocessors, data storage and other computer memory
 
14 devices, and computer terminals or similar devices.
 
15      "Computer network" means two or more computer systems
 
16 connected so as to permit the exchange or sharing of data between
 
17 or among them.
 
18      "Computer program" or "software" means a set of computer-
 
19 readable instructions or statements which, when executed by a
 
20 computer system, causes the computer system or the computer
 
21 network to which it is connected to perform computer services.
 
22      "Computer services" means data input, data output, data
 

 
 
 
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 1 processing, or data storage by or in a computer system or
 
 2 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.
 
 6      "Data" means information stored in a computer system or on
 
 7 electronic media or processed in a computer system.
 
 8      "Disruption" means any deviation from normal operations of
 
 9 any computer, computer system, or computer network.
 
10      "Injury" includes addition, alteration, damage, deletion,
 
11 destruction, denial of access with respect to data in, or
 
12 functions of, a computer system or computer network.
 
13      "Property" includes financial instruments, data, computer
 
14 software, computer programs, documents associated with computer
 
15 systems and computer programs, or copies, whether tangible or
 
16 intangible, and data while in transit.
 
17      "Without authorization" means without the permission of or
 
18 in excess of the permission of an owner, lessor, or rightful user
 
19 or someone licensed or privileged by an owner, lessor, or
 
20 rightful user to grant such permission."]
 
21      SECTION 6.  Section 708-891, Hawaii Revised Statutes, is
 
22 repealed.
 

 
 
 
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 1      ["[§708-891]  Computer fraud.(1)  A person commits the
 
 2 offense of computer fraud if:
 
 3      (a)  The person accesses or causes to be accessed any
 
 4           computer, computer system, computer network, or any of
 
 5           its parts with the intent of devising or executing any
 
 6           scheme or artifice to defraud; or
 
 7      (b)  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 obtaining money, property,
 
10           or services by means of embezzlement or false or
 
11           fraudulent representations; or
 
12      (c)  The person, without authorization, accesses or causes
 
13           to be accessed any computer, computer system, computer
 
14           network, or any of its parts with the intent of
 
15           obtaining credit information on another person; or
 
16      (d)  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 introducing or causing to
 
19           be introduced false information to damage or enhance
 
20           the credit rating of any person.
 
21      (2)  Computer fraud is a class C felony."]
 
22      SECTION 7.  Section 708-892, Hawaii Revised Statutes, is
 

 
 
 
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 1 repealed.
 
 2      ["[708-892]  Unauthorized computer use.  (1)  A person
 
 3 commits the offense of unauthorized computer use if the person
 
 4 intentionally and without authorization accesses, alters,
 
 5 injures, disrupts, damages, or destroys any computer, computer
 
 6 system, computer network, computer program, computer software, or
 
 7 any data stored therein.
 
 8      (2)  Unauthorized computer use is a class C felony."]
 
 9      SECTION 8.  If any provision of this Act, or the application
 
10 thereof to any person or circumstance is held invalid, the
 
11 invalidity does not affect other provisions or applications of
 
12 the Act which can be given effect without the invalid provision
 
13 or application, and to this end the provisions of this Act are
 
14 severable.
 
15      SECTION 9.  This Act does not affect rights and duties that
 
16 matured, penalties that were incurred, and proceedings that were
 
17 begun, before its effective date.
 
18      SECTION 10.  Statutory material to be repealed is bracketed.
 
19 New statutory material is underscored.
 
20      SECTION 11.  This Act shall take effect on July 1, 2000.