By Mark Rasch
Much has been written about the new anti-terrorism legislation passed by Congress and signed by President Bush, particularly as it respects the ability of the government to conduct surveillance on email, voice-mail, and other electronic communications. However, too little attention has been paid to other provisions of the legislation, particularly a significant change to the definition of the types of computers protected under federal law.
An amendment to the definition of a "protected computer" for the first time explicitly enables U.S. law enforcement to prosecute computer hackers outside the United States in cases where neither the hackers nor their victims are in the U.S., provided only that packets related to that activity traveled through U.S. computers or routers.
This remarkable amendment is to the Computer Fraud and Abuse Act, which Congress enacted in 1984 to prohibit conduct that damages a "Federal interest computer," defined at the time as "a computer owned or used by the United States Government or a financial institution," or, "one of two or more computers used in committing the offense, not all of which are located in the same State."
THE 'PROTECTED COMPUTER'.
Under that initial definition, if a hacker in the U.S. broke into a computer in a foreign country (or vice versa), because the computers were not all located in the same state, a federal offense would have been committed. If, however, the victim computer and the hacker's computer were both located in the same state, this would be a purely "intrastate" offense, punishable by the state or local government. (A purely intrastate offense could also be prosecuted federally if the victim computer was used by the federal government or a federally insured institution, or if any computer involved in the offense was located in another state.)
This limitation represented a conscious effort by the U.S. Congress to limit the scope of federal crimes to those with a truly interstate reach.
In 1994, Congress replaced the term "Federal interest computer" with the phrase "computer used in interstate commerce or communication." In 1996, Congress amended the law once again, defining a new term, "protected computer," and concomitantly expanding the number of computers that the statute "protected." The 1996 amendments defined a protected computer as one that is "exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or which is used in interstate or foreign commerce or communication."
In the new anti-terrorism legislation, Congress once again expanded the scope of federal jurisdiction over computer crimes. Section 814 of the PATRIOT bill added to the definition of a protected computer an explicit provision stating that federal law precludes activities involving "a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States."
Congress did not require that the effect on interstate or foreign commerce or communication be substantial, or even, for that matter, measurable.
Almost immediately after the legislation was signed, the Department of Justice issued a guidance paper to instruct thousands of federal prosecutors how to use the new statute. The guidance noted that:
Because of the interdependency and availability of global computer networks, hackers from within the United States are increasingly targeting systems located entirely outside of this country. The [previous] statute did not explicitly allow for prosecution of such hackers. In addition, individuals in foreign countries frequently route communications through the United States, even as they hack from one foreign country to another. In such cases, their hope may be that the lack of any U.S. victim would either prevent or discourage U.S. law enforcement agencies from assisting in any foreign investigation or prosecution.
... Section 814 of the Act amends the definition of "protected computer" to make clear that this term includes computers outside of the United States so long as they affect "interstate or foreign commerce or communication of the United States." 18 U.S.C. ' 1030(e)(2)(B). By clarifying the fact that a domestic offense exists, the United States can now use speedier domestic procedures to join in international hacker investigations. As these crimes often involve investigators and victims in more than one country, fostering international law enforcement cooperation is essential.
In addition, the amendment creates the option, where appropriate, of prosecuting such criminals in the United States. Since the U.S. is urging other countries to ensure that they can vindicate the interests of U.S. victims for computer crimes that originate in their nations, this provision will allow the U.S. to provide reciprocal coverage.
The Department of Justice therefore views the amendment as more than a mere clarification of existing law, but as an expansion of U.S. jurisdiction to permit, for the first time, the United States to prosecute cases where both the attacker and the victim are located outside the United States, and to apply U.S. substantive and procedural law to such international activity.
Computer crime in general, and computer hacking in particular, has always been recognized as a uniquely trans-national offense. Hackers from anywhere in the world can engage in activities that will affect computers outside of the country from which they originate. Moreover, computer viruses, worms and other malicious code do not respect international boundaries, and can damage information or computers located in countries far remote from those where the hacker is located.
Interestingly, when a hacker in Singapore released the "I Love You" virus affecting computers all over the world, only the U.S. FBI traveled to Singapore to investigate. When the "Melissa" virus swept across the planet, no foreign law enforcement officials descended on New Jersey to prosecute David Smith, the author of the virus, nor were any such officials publicly invited to participate.
Nevertheless, these cases demonstrate an important principle of international law -- the so-called "protective principle." Every nation has the right to extend the scope of its law beyond its borders to protect the rights and property of its own nationals. An attack on a U.S. citizen abroad may violate U.S. law. A gunshot from Canada that kills a person in the United States may properly be prosecuted in the United States. A hacker who attacks a computer in the United States from a foreign country violates U.S. law, and it is entirely appropriate that the United States should have the authority to protect itself from such attacks. Whether the U.S. will take the lead in such investigations or not will depend not so much on law, but on international politics.
The recent Council of Europe Cybercrime Treaty encourages countries to make computer crime an offense within their own borders, and to cooperate on international investigations of computer crime.
In its interpretation of the need for the unprecedented expansion of U.S. sovereignty, the Department of Justice asserts that U.S. law enforcement agencies would not investigate cases of computer crime where the victim and targets are located outside the United States, not because of the lack of any authority to do so, but because, of a lack of will. In fact, there is much truth to this assertion. Many law enforcement agencies see no reason to assist foreign governments' investigations where there is no likelihood that they will obtain a conviction within the country.
However, the appropriate response to this reluctance is to encourage domestic law enforcement agencies to assist their foreign brethren voluntarily, not to expand the scope of domestic law to permit prosecution within the United States of what is essentially a foreign offense.
WHEN REACH EXCEEDS GRASP.
Congress' authority to criminalize conduct generally is derived from Article I of the Constitution, which, among other things allows the legislature to regulate interstate and foreign commerce. The statute is broad and allows the protection of the instrumentalities and channels of interstate or foreign commerce. In 1995 the Supreme Court noted that Congress' power was limited though to regulate those activities that "substantially affect" interstate commerce and not merely those where the affect is tangential.
The distinction is crucial. Clearly if a U.S. computer or computer network is shut down, attacked, penetrated, or prevented from properly functioning as a result of foreign hacking activity, the protective principle of international law should properly permit a U.S. prosecution.
Where the affect on U.S. computer networks is slight -- to the point of non-existence -- the U.S. should not impose its law on the activity.
The new statute requires no threshold of damage or even effect on U.S. computers to trigger U.S. sovereignty. The vast majority of Internet traffic travels through the United States, with more than half of the traffic traveling through Northern Virginia alone. The mere fact that packets relating to the criminal activity travel through the United States should not be enough to trigger U.S. jurisdiction, even though such traffic would "affect" international commerce, albeit infinitesimally.
The expanded statute, and the DOJ policy guidance, would permit the U.S. to impose its law on the Internet generally, without the need to show damage or trespass to a U.S. computer, merely on the basis of packets being inadvertently routed through U.S. computers. This represents and unwarranted and dangerous expansion of U.S. sovereignty, and will invariably result in more turf battles with foreign law enforcement agencies, rather than fewer.
Under the Department of Justice's interpretation of this legislation, a computer hacker in Frankfurt Germany who hacks into a computer in Cologne Germany could be prosecuted in the Eastern District of Virginia in Alexandria if the packet related to the attack traveled through America Online's computers. Moreover, the United States would reserve the right to demand that the extradition of the hacker even if the conduct would not have violated German law, or to, as it has in other kinds of cases, simply remove the offender forcibly for trial.
What is perhaps the most troubling about this legislation, in addition to the lack of any debate or focus on it, is the fact that the Department of Justice manual simply says that this unprecedented power will be used in "appropriate cases." The Department of Justice provides no guidance to prosecutors or citizens of the world what kinds of cases it will deem to be "appropriate" for the expanded jurisdiction.
The Department of Justice has no procedures in place to mandate high-level DOJ review before such power can be used. A prosecutor in Boise may therefore decide to go after a Norwegian hacker for hacking a computer in Oslo, if the packets "affected" interstate commerce, and the prosecutor thinks it "appropriate."
Every country has the right to protect its own citizens, property and interests. No country has the right to impose its will, its values, its mores or laws on conduct that occurs outside its borders even if they may have a tangential effect on that country. The new legislation permits the U.S. government to do just that, and is unwise and unwarranted.
Mark D. Rasch, J.D., is the Vice President for Cyberlaw at Predictive Systems Inc. in Reston, Virginia, a computer security and network design consulting firm. Prior to joining Predictive Systems, Mr. Rasch was the head of the U.S. Department of Justice Computer Crime Unit and prosecuted a series of high profile computer crime cases from 1984 to 1991.