Malicious Intent

Malicious Intent

Malicious Intent

Note: This information about Malicious Intent 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 Malicious Intent. The second enhancement of the new specific offense characteristic in §2B1. 1 addresses the factor of malicious intent. Section 1030(a)(5)(A)(i) prohibits the transmission of a program, information, code, or command to a protected computer with the intent to cause damage. Proof of one of the five harms listed in the statute is required to sustain a violation. The other two subsections of section 1030(a)(5)(A) proscribe similar offenses resulting in damage to protected computers, but do not require the same showing of intent to cause damage. Violations of section 1030(a)(5)(A)(i) have recently been singled out by Congress as being of particular concern. In October 2001, the USA PATRIOT Act increased the maximum penalty for these violations from five to ten years' imprisonment. It also expanded the scope of the crime by including damage affecting computer systems used in furtherance of the administration of justice, national defense, or national security as one of the harms that may be proven to sustain a violation. In the Homeland Security Act, Congress again increased penalties for section 1030(a)(5)(A)(i) violations, this time adding provisions that provide for penalties of up to either twenty years' or life imprisonment, if the offender knowingly or recklessly caused or attempted to cause either serious bodily injury or death. Until this proposed amendment, the guidelines did not distinguish between violations of section 1030(a)(5)(A)(i), in which damage is caused intentionally, and violations of sections (a)(5)(A)(ii) or (iii), in which damage is caused recklessly, negligently, or accidentally. Given the increased statutory penalties that are now available for violations of section 1030(a)(5)(A)(i) and the heightened level of intent involved in such violations, the United States Sentencing Commission concluded that an increased level of punishment would be appropriate for those convicted of a section 1030(a)(5)(A)(i) offense. Accordingly, the new enhancement at §2B1. 1(b)(13)(A)(ii) provides for a four level increase if an offender is convicted of section 1030(a)(5)(A)(i), an approximate 50 percent increase in sentence. Finally, violations of section 1030(a)(5)(A)(i) (except those in which the only statutory harm alleged is loss of $5,000 or more) that are related to terrorism will be potentially eligible for the terrorism enhancement in §3A1. 4 (Terrorism). That guideline provides a 12 level enhancement, with a minimum offense level of 32, if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Offenses under sections 1030(a)(5)(A)(i) (except those in which the only statutory harm alleged is loss of at least $5,000) and 1030(a)(1) qualify as predicate terrorism offenses under 18 U. S. C. § 2332b(g)(5) as a result of changes implemented by the USA PATRIOT Act.


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