Faking It: Calculating Loss in Computer Crime Sentencing. Jennifer S. Granick, Esq. Stanford Law School Center for Internet and Society [email protected] 18 U.S.C. 1030. (a)(1) unauthorized access to classified information;
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Jennifer S. Granick, Esq.
Stanford Law School
Center for Internet and Society
Incidents that cause measurable pecuniary harm will be prosecuted where incidents that cause more difficult to measure non-pecuniary harm may go unpunished.
Victim has tremendous power to affect the prosecution and sentence, independent of anything the offender might do.
Losses that the law says we should not count against defendants (forensic investigation, worries about harm to reputation) get counted anyway.
Any impairment to the integrity or availability of data, a program, a system, or information.
18 USC 1030(e)(8).
Any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service. (e)(11)
The modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; access that causes physical injury to any person; a threat to public health or safety; or damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security.
Actual loss includes the following pecuniary harm, regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other damages incurred because of interruption of service. 2B1.1, comment 3AViii
Incidents vary in severity (socially defined)
Only $$ gets punished
Trivial incidents may cost more (victim defined)
Low standard of proofProblems