Critical Infrastructure

Upward Departure Provision For Debilitating Impact on Critical Infrastructure

Note: This information about Upward Departure Provision For Debilitating Impact on Critical Infrastructure is based on an United States Sentencing Commission report to the Congress on penalties for cyber security offenses. In this case, the content of this section deals with the proposed Amendment by the Commission, in relation to the modifications to §2B1. 1 (Theft, Property Destruction, and Fraud). The proposed amendment adds a new upward departure provision to §2B1. 1 to address offenses in which the substantial disruption to a critical infrastructure is so severe as to have a debilitating impact on national security, national economic security, national public health or safety or any combination thereof. This provision, at Application Note 18(B) to §2B1. 1, is an encouraged upward departure, stating that an upward departure “would be warranted” in such circumstances.

Critical Infrastructure

Note: This information about Critical Infrastructure is based on an United States Sentencing Commission report to the Congress on penalties for cyber security offenses. In this case, the content of this section deals with the implementation of the Homeland Security Act Directive in relation to Critical Infrastructure. Offenses involving interference with critical infrastructure are addressed by both the first and third enhancements of the new specific offense characteristic in §2B1. 1, as well as by the new upward departure provision at Application Note 18(B) to §2B1. 1. As noted in section II(A)(1) of this entry, an offender will receive a two level enhancement under §2B1. 1(b)(13)(A)(i) if the offense involved a computer system used to maintain or operate a critical infrastructure, an approximate 25 percent increase in sentence. Alternatively, if the offense resulted in a substantial disruption to a critical infrastructure, the offender will receive a six level enhancement, roughly doubling the sentence, with a minimum offense level of 24. In addition, the proposed amendment adds an upward departure provision at Application Note 18(B) to provide that an upward departure would be warranted for cases in which the substantial disruption to a critical infrastructure had a debilitating impact. Critical infrastructure is defined in the commentary at Application Note 12(A) as “systems and assets vital to national defense, national security, economic security, public health or safety, or any combination of those matters. ” This definition is derived in part from the definition provided by Congress in the USA PATRIOT Act, see Pub. L. 107–56, § 1016; 42 U. S. C. § 5195c(e), but was modified to ensure that the enhancement could apply to a substantial disruption of a critical infrastructure that was regional, rather than national, in scope. The application note also makes clear that a critical infrastructure can be publicly or privately owned and provides examples. In addition to the changes in §2B1. 1, the proposed amendment also modifies §2B2. 3 and §2B3. 2 to expand existing enhancements in those guidelines to provide increased punishment for trespass and extortion offenses involving computer systems used to maintain or operate a critical infrastructure.