[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[S. 2168 Referred in House (RFH)]
110th CONGRESS
1st Session
S. 2168
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 4, 2007
Referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
To amend title 18, United States Code, to enable increased federal
prosecution of identity theft crimes and to allow for restitution to
victims of identity theft.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Identity Theft Enforcement and
Restitution Act of 2007''.
SEC. 2. CRIMINAL RESTITUTION.
Section 3663(b) of title 18, United States Code, is amended--
(1) in paragraph (4), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (5), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(6) in the case of an offense under sections 1028(a)(7)
or 1028A(a) of this title, pay an amount equal to the value of
the time reasonably spent by the victim in an attempt to
remediate the intended or actual harm incurred by the victim
from the offense.''.
SEC. 3. PREDICATE OFFENSES FOR AGGRAVATED IDENTITY THEFT AND MISUSE OF
IDENTIFYING INFORMATION OF ORGANIZATIONS.
(a) Identity Theft.--Section 1028 of title 18, United States Code,
is amended--
(1) in subsection (a)(7), by inserting ``(including an
organization as defined in section 18 of this title)'' after
``person''; and
(2) in subsection (d)(7), by inserting ``or other person''
after ``specific individual''.
(b) Aggravated Identity Theft.--Section 1028A of title 18, United
States Code, is amended--
(1) in subsection (a)(1), by inserting ``(including an
organization as defined in section 18 of this title)'' after
``person''; and
(2) in subsection (c)--
(A) in the matter preceding paragraph (1), by
inserting ``, or a conspiracy to commit such a felony
violation,'' after ``any offense that is a felony
violation'';
(B) by redesignating--
(i) paragraph (11) as paragraph (14);
(ii) paragraphs (8) through (10) as
paragraphs (10) through (12), respectively; and
(iii) paragraphs (1) through (7) as
paragraphs (2) through (8), respectively;
(C) by inserting prior to paragraph (2), as so
redesignated, the following:
``(1) section 513 (relating to making, uttering, or
possessing counterfeited securities);'';
(D) by inserting after paragraph (8), as so
redesignated, the following:
``(9) section 1708 (relating to mail theft);'';
(E) in paragraph (12), as so redesignated, by
striking ``; or'' and inserting a semicolon; and
(F) by inserting after paragraph (12), as so
redesignated, the following:
``(13) section 7201, 7206, or 7207 of title 26 (relating to
tax fraud); or''.
SEC. 4. ENSURING JURISDICTION OVER THE THEFT OF SENSITIVE IDENTITY
INFORMATION.
Section 1030(a)(2)(C) of title 18, United States Code, is amended
by striking ``if the conduct involved an interstate or foreign
communication''.
SEC. 5. MALICIOUS SPYWARE, HACKING AND KEYLOGGERS.
(a) In General.--Section 1030 of title 18, United States Code, is
amended--
(1) in subsection (a)(5)--
(A) by striking subparagraph (B); and
(B) in subparagraph (A)--
(i) by striking ``(A)(i) knowingly'' and
inserting ``(A) knowingly'';
(ii) by redesignating clauses (ii) and
(iii) as subparagraphs (B) and (C),
respectively; and
(iii) in subparagraph (C), as so
redesignated--
(I) by inserting ``and loss'' after
``damage''; and
(II) by striking ``; and'' and
inserting a period;
(2) in subsection (c)--
(A) in paragraph (2)(A), by striking
``(a)(5)(A)(iii),'';
(B) in paragraph (3)(B), by striking
``(a)(5)(A)(iii),'';
(C) by amending paragraph (4) to read as follows:
``(4)(A) except as provided in subparagraphs (E) and (F), a
fine under this title, imprisonment for not more than 5 years,
or both, in the case of--
``(i) an offense under subsection (a)(5)(B), which
does not occur after a conviction for another offense
under this section, if the offense caused (or, in the
case of an attempted offense, would, if completed, have
caused)--
``(I) loss to 1 or more persons during any
1-year period (and, for purposes of an
investigation, prosecution, or other proceeding
brought by the United States only, loss
resulting from a related course of conduct
affecting 1 or more other protected computers)
aggregating at least $5,000 in value;
``(II) the modification or impairment, or
potential modification or impairment, of the
medical examination, diagnosis, treatment, or
care of 1 or more individuals;
``(III) physical injury to any person;
``(IV) a threat to public health or safety;
``(V) damage affecting a computer used by
or for an entity of the United States
Government in furtherance of the administration
of justice, national defense, or national
security; or
``(VI) damage affecting 10 or more
protected computers during any 1-year period;
or
``(ii) an attempt to commit an offense punishable
under this subparagraph;
``(B) except as provided in subparagraphs (E) and (F), a
fine under this title, imprisonment for not more than 10 years,
or both, in the case of--
``(i) an offense under subsection (a)(5)(A), which
does not occur after a conviction for another offense
under this section, if the offense caused (or, in the
case of an attempted offense, would, if completed, have
caused) a harm provided in subclauses (I) through (VI)
of subparagraph (A)(i); or
``(ii) an attempt to commit an offense punishable
under this subparagraph;
``(C) except as provided in subparagraphs (E) and (F), a
fine under this title, imprisonment for not more than 20 years,
or both, in the case of--
``(i) an offense or an attempt to commit an offense
under subparagraphs (A) or (B) of subsection (a)(5)
that occurs after a conviction for another offense
under this section; or
``(ii) an attempt to commit an offense punishable
under this subparagraph;
``(D) a fine under this title, imprisonment for not more
than 10 years, or both, in the case of--
``(i) an offense or an attempt to commit an offense
under subsection (a)(5)(C) that occurs after a
conviction for another offense under this section; or
``(ii) an attempt to commit an offense punishable
under this subparagraph;
``(E) if the offender attempts to cause or knowingly or
recklessly causes serious bodily injury from conduct in
violation of subsection (a)(5)(A), a fine under this title,
imprisonment for not more than 20 years, or both;
``(F) if the offender attempts to cause or knowingly or
recklessly causes death from conduct in violation of subsection
(a)(5)(A), a fine under this title, imprisonment for any term
of years or for life, or both; or
``(G) a fine under this title, imprisonment for not more
than 1 year, or both, for--
``(i) any other offense under subsection (a)(5); or
``(ii) an attempt to commit an offense punishable
under this subparagraph.''; and
(D) by striking paragraph (5); and
(3) in subsection (g)--
(A) in the second sentence, by striking ``in
clauses (i), (ii), (iii), (iv), or (v) of subsection
(a)(5)(B)'' and inserting ``in subclauses (I), (II),
(III), (IV), or (V) of subsection (c)(4)(A)(i)''; and
(B) in the third sentence, by striking ``subsection
(a)(5)(B)(i)'' and inserting ``subsection
(c)(4)(A)(i)(I)''.
(b) Conforming Changes.--Section 2332b(g)(5)(B)(i) of title 18,
United States Code, is amended by striking ``1030(a)(5)(A)(i) resulting
in damage as defined in 1030(a)(5)(B)(ii) through (v)'' and inserting
``1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II)
through (VI)''.
SEC. 6. CYBER-EXTORTION.
Section 1030(a)(7) of title 18, United States Code, is amended to
read as follows:
``(7) with intent to extort from any person any money or
other thing of value, transmits in interstate or foreign
commerce any communication containing any--
``(A) threat to cause damage to a protected
computer;
``(B) threat to obtain information from a protected
computer without authorization or in excess of
authorization or to impair the confidentiality of
information obtained from a protected computer without
authorization or by exceeding authorized access; or
``(C) demand or request for money or other thing of
value in relation to damage to a protected computer,
where such damage was caused to facilitate the
extortion;''.
SEC. 7. CONSPIRACY TO COMMIT CYBER-CRIMES.
Section 1030(b) of title 18, United States Code, is amended by
inserting ``conspires to commit or'' after ``Whoever''.
SEC. 8. USE OF FULL INTERSTATE AND FOREIGN COMMERCE POWER FOR CRIMINAL
PENALTIES.
Section 1030(e)(2)(B) of title 18, United States Code, is amended
by inserting ``or affecting'' after ``which is used in''.
SEC. 9. FORFEITURE FOR SECTION 1030 VIOLATIONS.
Section 1030 of title 18, United States Code, is amended by adding
at the end the following:
``(i)(1) The court, in imposing sentence on any person convicted of
a violation of this section, or convicted of conspiracy to violate this
section, shall order, in addition to any other sentence imposed and
irrespective of any provision of State law, that such person forfeit to
the United States--
``(A) such person's interest in any personal property that
was used or intended to be used to commit or to facilitate the
commission of such violation; and
``(B) any property, real or personal, constituting or
derived from, any proceeds that such person obtained, directly
or indirectly, as a result of such violation.
``(2) The criminal forfeiture of property under this subsection,
any seizure and disposition thereof, and any judicial proceeding in
relation thereto, shall be governed by the provisions of section 413 of
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), except subsection (d) of that section.
``(j) For purposes of subsection (i), the following shall be
subject to forfeiture to the United States and no property right shall
exist in them:
``(1) Any personal property used or intended to be used to
commit or to facilitate the commission of any violation of this
section, or a conspiracy to violate this section.
``(2) Any property, real or personal, which constitutes or
is derived from proceeds traceable to any violation of this
section, or a conspiracy to violate this section''.
SEC. 10. DIRECTIVE TO UNITED STATES SENTENCING COMMISSION.
(a) Directive.--Pursuant to its authority under section 994(p) of
title 28, United States Code, and in accordance with this section, the
United States Sentencing Commission shall review its guidelines and
policy statements applicable to persons convicted of offenses under
sections 1028, 1028A, 1030, 2511, and 2701 of title 18, United States
Code, and any other relevant provisions of law, in order to reflect the
intent of Congress that such penalties be increased in comparison to
those currently provided by such guidelines and policy statements.
(b) Requirements.--In determining its guidelines and policy
statements on the appropriate sentence for the crimes enumerated in
subsection (a), the United States Sentencing Commission shall consider
the extent to which the guidelines and policy statements may or may not
account for the following factors in order to create an effective
deterrent to computer crime and the theft or misuse of personally
identifiable data:
(1) The level of sophistication and planning involved in
such offense.
(2) Whether such offense was committed for purpose of
commercial advantage or private financial benefit.
(3) The potential and actual loss resulting from the
offense including--
(A) the value of information obtained from a
protected computer, regardless of whether the owner was
deprived of use of the information; and
(B) where the information obtained constitutes a
trade secret or other proprietary information, the cost
the victim incurred developing or compiling the
information.
(4) Whether the defendant acted with intent to cause either
physical or property harm in committing the offense.
(5) The extent to which the offense violated the privacy
rights of individuals.
(6) The effect of the offense upon the operations of an
agency of the United States Government, or of a State or local
government.
(7) Whether the offense involved a computer used by the
United States Government, a State, or a local government in
furtherance of national defense, national security, or the
administration of justice.
(8) Whether the offense was intended to, or had the effect
of, significantly interfering with or disrupting a critical
infrastructure.
(9) Whether the offense was intended to, or had the effect
of, creating a threat to public health or safety, causing
injury to any person, or causing death.
(10) Whether the defendant purposefully involved a juvenile
in the commission of the offense.
(11) Whether the defendant's intent to cause damage or
intent to obtain personal information should be disaggregated
and considered separately from the other factors set forth in
USSG 2B1.1(b)(14).
(12) Whether the term ``victim'' as used in USSG 2B1.1,
should include individuals whose privacy was violated as a
result of the offense in addition to individuals who suffered
monetary harm as a result of the offense.
(13) Whether the defendant disclosed personal information
obtained during the commission of the offense.
(c) Additional Requirements.--In carrying out this section, the
United States Sentencing Commission shall--
(1) assure reasonable consistency with other relevant
directives and with other sentencing guidelines;
(2) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally
applicable sentencing ranges;
(3) make any conforming changes to the sentencing
guidelines; and
(4) assure that the guidelines adequately meet the purposes
of sentencing as set forth in section 3553(a)(2) of title 18,
United States Code.
Passed the Senate November 15, 2007.
Attest:
NANCY ERICKSON,
Secretary.