The courts may someday treat recreational hackers with a gentler justice
than malicious intruders and cyber thieves, depending on the results of a
study being spearheaded by a member of the government commission responsible
for setting federal sentences.
Since September 11 and the passing of the USA Patriot Act into law, hackers
have been lumped into an homogeneous and enigmatic category of evildoers,
along with terrorists, drug dealers, and arms smugglers. The act provides
for a maximum of ten years in jail for first time computer criminals, and
the definitions of these crimes are vague at best.
But the USA Patriot Act alone does not govern how judges sentence hackers.
That job is left up to the United States Sentencing Commission (USSC), and
the task of discerning the harmless intrusion from the harmful has fallen
squarely on the shoulders of Michael Edmund O'Neill.
The USSC, as O'Neill puts it, "creates sentencing guidelines for all federal
courts. It crafts the guidelines that enable judges to choose appropriate
sentences within statutorily authorized ranges." That means that the
commission is responsible for building charts and formulae that tell federal
judges what range of possible sentences a criminal should face -- from
probation to life imprisonment. The term "guidelines" is slightly misleading
here: these guidelines are binding, and all federal judges must sentence
according to them.
Currently, the guidelines regarding computer crime are the same as for
larceny, embezzlement and theft, with factors like financial loss and "use
of special skills" dictating the offender's sentence. O'Neill hopes to
refine the guidelines for computer crime, possibly making the intruder's
motives a factor in their legal fate.
O'Neill is certainly the commissioner most qualified for the task. He
describes himself as the product of what was possibly the most
technologically advanced high school in Wisconsin. In the mid 1980's, while
other schools were struggling to keep their Apple IIs up to date, O'Neill's
high school was teaching its students how to program C, Fortran, and Cobol.
Later, while he attended Brigham Young University in Utah, O'Neill got a
summer job writing WordPerfect's first thesaurus in C.
It's not the sort of background you'd expect to see behind Clinton's last
appointee to the seven-person United States Sentencing Commission. When he's
not writing sentencing guidelines, O'Neill is an assistant law professor at
George Mason University, and it is here that he is undertaking his academic
study on the causes and rationales behind computer crime.
Sentences Rarely Drop
The rationale most commonly found: Money. Those that would steal credit card
numbers, commit identity theft, or build elaborate con games to harvest cash
are at the focal point of O'Neill's investigation. As O'Neill puts it "The
Internet affords con-men access to a massive number of people. Why should
the laws be any less stringent when the criminal has access to twenty times
more potential targets?"
But con artists aren't the only ones under O'Neill's microscope. O'Neill
says his team has been interviewing convicted hackers in order to find out
where the line between experimentation and exploitation can be drawn
effectively. His study may result in new sentencing guidelines that treat
minor hacking offenses as vandalism, rather than imprisonable crimes.
Hacker defense attorney Jennifer Granick is skeptical. "In my experience as
an observer [of the USSC] I have rarely, if ever, seen sentences go down,"
says Granick, the litigation director at the Stanford Center for Internet
and Society. "In order for them to be fair, they're going to have to go
Granick worries that O'Neill will simply increase penalties for more severe
intrusion, while using the current sentencing guidelines for harmless
attacks. If so, sentences for script kiddies would remain the same, while
hardened professionals could see sentences skyrocket past 20 years.
It remains to be seen how O'Neill's study will sway his fellow USSC members.
Perhaps his research will help keep harmless experimenters out of jail. Or
it may increase sentences for all computer criminals, regardless of their
crimes. Either way, in the coming months, the USSC will hold in its hands
the fate of hackers, script kiddies and cyber thieves across the U.S. By Alex Handy