Rule of Construction

Clarification of Rule of Construction For Calculation of Cybersecurity Loss

Note: This information about Clarification of Rule of Construction For Calculation of Cybersecurity Loss 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 modifies the rule of construction relating to the calculation of loss in protected computer cases. Prior to this proposed amendment, Application Note 2(A)(v)(III) (to be redesignated Application Note 3(A)(v)(III)) to §2B1. 1 provided that in certain cases involving the unauthorized access, or access exceeding authorization, to a protected computer, certain pecuniary harms as described in the application note were to be considered “actual loss” regardless of whether such harms were reasonably foreseeable. In October 2001, as part of the USA PATRIOT Act of 2001, Pub. L. 107–56, Congress added a definition of loss to 18 U. S. C. § 1030, thus clarifying what types of expenses could be considered in calculating whether the $5,000 jurisdictional trigger applicable to certain section 1030(a)(5) cases was met. See 18 U. S. C. § 1030(e)(11). The guideline proposed amendment modifies the rule of construction under §2B1. 1 to more fully incorporate the statutory definition and to clarify its application to all offenses under 18 U. S. C. § 1030.

Rule of Construction

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