REPORT TITLE:
Computer Crimes


DESCRIPTION:
Repeals existing law and adds the crimes of computer fraud,
taking by computer, computer trespass, unlawful distribution,
unsolicited electronic mail, and computer invasion of privacy.
Provides for civil actions based on the computer crimes.  (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2352
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO COMPUTER OFFENSES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Computer crime is a paradigm shift in criminal
 
 2 offenses.  Computers not only enhance the harm of some
 
 3 traditional crimes, but are also the basis for new crimes based
 
 4 on the computer itself.  Hawaii's current computer law is limited
 
 5 and contains loopholes.  The intent of this Act is to adopt
 
 6 stronger protection for Hawaii residents in the area of computer-
 
 7 based offenses.
 
 8      SECTION 2.  Chapter 708, Hawaii Revised Statutes, is amended
 
 9 by adding eleven new sections to be appropriately designated and
 
10 to read as follows:
 
11      "708-     Computer fraud.  (1)  A person commits the
 
12 offense of computer fraud if the person uses a computer or
 
13 computer network without appropriate authority and with the
 
14 intent to:
 
15      (a)  Obtain property or services by false pretenses;
 
16      (b)  Devise or execute any scheme or artifice to defraud;
 
17      (c)  Damage or enhance the credit rating of any person; or
 
18      (d)  Impersonate another.
 
19      (2)  Computer fraud is a class C felony, unless, under
 

 
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 1 paragraph (a), the value of the property or services obtained is
 
 2 less than $200, in which case it shall be a misdemeanor.
 
 3      708-     Taking by computer in the first degree.  (1)  A
 
 4 person commits the offense of taking by computer in the first
 
 5 degree when the person, without appropriate authority, copies any
 
 6 information of significant value from a computer or computer
 
 7 network.  The person does not have to deprive the owner of the
 
 8 use or possession of the material copied in order to have
 
 9 committed an offense under this section.  As used in this section
 
10 "information of significant value" includes information with a
 
11 monetary value assessed at $        or more, passwords, financial
 
12 records including account numbers, medical records, and social
 
13 security or other identification numbers.
 
14      (2)  Taking by computer in the first degree is a class C
 
15 felony.
 
16      708-     Taking by computer in the second degree.  (1)  A
 
17 person commits the offense of taking by computer in the second
 
18 degree when the person, without appropriate authority, copies any
 
19 information from a computer or computer network.  The person does
 
20 not have to deprive the owner of the use or possession of the
 
21 material copied in order to have committed an offense under this
 
22 section.
 
23      (2)  Taking by computer in the second degree is a
 

 
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 1 misdemeanor.
 
 2      708-     Computer trespass in the first degree.  (1)  A
 
 3 person commits the offense of computer trespass in the first
 
 4 degree if the person intentionally and, without appropriate
 
 5 authority:
 
 6      (a)  Temporarily or permanently removes, halts, or otherwise
 
 7           disables any computer data, computer program, or
 
 8           computer software from a computer or computer network;
 
 9      (b)  Causes a computer to malfunction, regardless of how
 
10           long the malfunction persists;
 
11      (c)  Alters or erases any computer data, computer program,
 
12           or computer software;
 
13      (d)  Effects the creation or alteration of a financial
 
14           instrument or of an electronic transfer of funds;
 
15      (e)  Causes physical injury to the property of another;
 
16      (f)  Makes or causes to be made an unauthorized copy, in any
 
17           form, including, but not limited to, any printed or
 
18           electronic form of computer data, computer program, or
 
19           computer software residing in, communicated by, or
 
20           produced by a computer or computer network; or
 
21      (g)  Falsifies or forges electronic mail transmission
 
22           information or other routing information in any manner
 
23           in connection with the transmission of unsolicited bulk
 

 
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 1           electronic mail through or into the computer network of
 
 2           an electronic mail service provider or its subscriber.
 
 3      (2)  Computer trespass in the first degree is a felony.
 
 4      708-     Computer trespass in the second degree.  (1)  A
 
 5 person commits the offense of computer trespass in the second
 
 6 degree if the person intentionally and, without appropriate
 
 7 authority, accesses the computer of another.
 
 8      (2)  Computer trespass in the second degree is a
 
 9 misdemeanor.
 
10      708-     Unlawful distribution.  (1)  A person commits the
 
11 offense of unlawful distribution if the person knowingly:
 
12      (a)  Sells, gives, or otherwise distributes or possesses
 
13           with the intent to sell, give, or distribute computer
 
14           software which:
 
15           (i)  Is primarily designed or produced for the purpose
 
16                of facilitating or enabling the falsification of
 
17                electronic mail transmission information, usenet
 
18                newsgroup posting, or other routing information;
 
19          (ii)  Has only limited commercially significant purpose
 
20                or use other than to facilitate or enable the
 
21                falsification of electronic mail transmission
 
22                information, usenet newsgroup posting, or other
 
23                routing information; or
 

 
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 1         (iii)  Is marketed by that person or another acting in
 
 2                concert with that person with that person's
 
 3                knowledge for use in facilitating or enabling the
 
 4                falsification of electronic mail transmission
 
 5                information, usenet newsgroup posting, or other
 
 6                routing information;
 
 7      (b)  Distributes or makes available passwords not the
 
 8           person's own; or
 
 9      (c)  Distributes or makes available information obtained by
 
10           computer trespass.
 
11      (2)  Unlawful distribution is a felony.
 
12      708-     Unsolicited electronic mail, service providers.
 
13 Nothing in this part shall be construed to interfere with or
 
14 prohibit terms or conditions in a contract or license related to
 
15 computers, computer data, computer networks, computer operations,
 
16 computer programs, computer services, or computer software or to
 
17 create any liability by reason of terms or conditions adopted by,
 
18 or technical measures implemented by, a Hawaii-based electronic
 
19 mail service provider to prevent the transmission of unsolicited
 
20 electronic mail in violation of this article.
 
21      708-     Computer invasion of privacy.  (1)  A person
 
22 commits the crime of computer invasion of privacy when the person
 
23 uses a computer or computer network and intentionally examines,
 

 
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 1 without or exceeding authority, any employment, salary, credit,
 
 2 or any other financial or personal information relating to any
 
 3 other person.  "Examination" under this section requires the
 
 4 offender to review the information relating to any other person
 
 5 after the time at which the offender knows or should know that
 
 6 the offender is without appropriate authority, to view the
 
 7 information displayed.
 
 8      (2)  Computer invasion of privacy is a misdemeanor.
 
 9      708-     Venue.  For the purpose of venue under this
 
10 article, any violation of this article shall be considered to
 
11 have been committed in any county in which: 
 
12      (a)  Any act was performed in furtherance of any course of
 
13           conduct which violated this article;
 
14      (b)  The owner has the owner's principal place of business
 
15           in the State;
 
16      (c)  Any offender had control or possession of any proceeds
 
17           of the violation or of any books, records, documents,
 
18           property, financial instrument, computer software,
 
19           computer program, computer data, or other material or
 
20           objects which were used in furtherance of the
 
21           violation;
 
22      (d)  From which, to which, or through which any access to a
 
23           computer or computer network was made whether by wires,
 

 
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 1           electromagnetic waves, microwaves, or any other means
 
 2           of communication; 
 
 3      (e)  The offender resides; or
 
 4      (f)  Any computer which is an object or an instrument of the
 
 5           violation is located at the time of the alleged
 
 6           offense.
 
 7      708-     Civil relief; damages.  (1)  Any person whose
 
 8 property or person is injured by reason of a violation of any
 
 9 provision of this part may sue and recover any damages sustained,
 
10 including all costs of the suit.  "Damages" includes loss of
 
11 profits and reasonable expenses incurred in checking the computer
 
12 system to determine the extent of damage, if any, by the
 
13 defendant.
 
14      (2)  If the injury arises from the transmission of
 
15 unsolicited bulk electronic mail, the injured person, other than
 
16 an electronic mail service provider, may also recover attorneys'
 
17 fees and costs, and may elect, in lieu of actual damages, to
 
18 recover the lesser of $10 for each and every unsolicited bulk
 
19 electronic mail message transmitted in violation of this article,
 
20 or $25,000 per day.  The injured person shall not have a cause of
 
21 action against the electronic mail service provider which merely
 
22 transmits the unsolicited bulk electronic mail over its computer
 
23 network.
 

 
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 1      (3)   If the injury arises from the transmission of
 
 2 unsolicited bulk electronic mail, an injured electronic mail
 
 3 service provider may also recover attorneys' fees and costs, and
 
 4 may elect, in lieu of actual damages, to recover the greater of
 
 5 $10 for each and every unsolicited bulk electronic mail message
 
 6 transmitted in violation of this article, or $25,000 per day.
 
 7      (4)  At the request of any party to an action brought
 
 8 pursuant to this section, the court, in its discretion, may
 
 9 conduct all legal proceedings in such a way as to protect the
 
10 secrecy and security of the computer, computer network, computer
 
11 data, computer program, and computer software involved in order
 
12 to prevent possible recurrence of the same or a similar act by
 
13 another person and to protect any trade secrets of any party.
 
14      (5)  The provisions of this chapter shall not be construed
 
15 to limit any person's right to pursue any additional civil remedy
 
16 otherwise allowed by law.
 
17      (6) A civil action under this section must be commenced
 
18 before expiration of the time period prescribed for the criminal
 
19 action.  In actions alleging injury arising from the transmission
 
20 of unsolicited bulk electronic mail, personal jurisdiction may be
 
21 exercised pursuant to this part.
 
22      708-     Definitions.  For purposes of this part:
 
23      "Computer" means an electronic, magnetic, optical,
 

 
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 1 hydraulic, or organic device or group of devices which, pursuant
 
 2 to a computer program, to human instruction, or to permanent
 
 3 instructions contained in the device or group of devices, can
 
 4 automatically perform computer operations with or on computer
 
 5 data and can communicate the results to another computer or to a
 
 6 person.  The term "computer" includes any connected or directly
 
 7 related device, equipment, or facility which enables the computer
 
 8 to store, retrieve or communicate computer programs, computer
 
 9 data or the results of computer operations to or from a person,
 
10 another computer or another device.
 
11      "Computer data" means any representation of information,
 
12 knowledge, facts, concepts, or instructions which is being
 
13 prepared or has been prepared and is intended to be processed, is
 
14 being processed, or has been processed in a computer or computer
 
15 network.  "Computer data" may be in any form, whether readable
 
16 only by a computer or only by a human or by either, including,
 
17 but not limited to, computer printouts, magnetic storage media,
 
18 punched cards, or stored internally in the memory of the
 
19 computer.
 
20      "Computer network" means a set of related, remotely
 
21 connected devices and any communications facilities including
 
22 more than one computer with the capability to transmit data among
 
23 them through the communications facilities.
 

 
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 1      "Computer operation" means arithmetic, logical, monitoring,
 
 2 storage, or retrieval functions and any combination thereof, and
 
 3 includes, but is not limited to, communication with, storage of
 
 4 data to, or retrieval of data from any device or human hand
 
 5 manipulation of electronic or magnetic impulses.  A "computer
 
 6 operation" for a particular computer may also be any function for
 
 7 which that computer was generally designed.
 
 8      "Computer program" means an ordered set of data representing
 
 9 coded instructions or statements that, when executed by a
 
10 computer, causes the computer to perform one or more computer
 
11 operations.
 
12      "Computer services" means computer time or services,
 
13 including data processing services, Internet services, electronic
 
14 mail services, electronic message services, or information or
 
15 data stored in connection therewith.
 
16      "Computer software" means a set of computer programs,
 
17 procedures and associated documentation concerned with computer
 
18 data or with the operation of a computer, computer program, or
 
19 computer network.
 
20      "Electronic mail service provider" means any person who (1)
 
21 is an intermediary in sending or receiving electronic mail; and
 
22 (2) provides to end-users of electronic mail services the ability
 
23 to send or receive electronic mail.
 

 
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 1      "Financial instrument" includes any check, draft, commercial
 
 2 paper, warrant, money order, note, certificate of deposit, letter
 
 3 of credit, bill of exchange, credit or debit card, transaction
 
 4 authorization mechanism, marketable security, or any computerized
 
 5 representation thereof.
 
 6      "Owner" means an owner or lessee of a computer or a computer
 
 7 network or an owner, lessee, or licensee of computer data,
 
 8 computer programs, or computer software.
 
 9      "Person" includes any individual, partnership, association,
 
10 corporation, or joint venture.
 
11      "Property" includes:
 
12      (1)  Real property;
 
13      (2)  Computers and computer networks;
 
14      (3)  Financial instruments, computer data, computer
 
15           programs, computer software, and all other personal
 
16           property regardless of whether they are:
 
17           (a)  Tangible or intangible;
 
18           (b)  In a format readable by humans or by a computer;
 
19           (c)  In transit between computers or within a computer
 
20                network or between any devices which comprise a
 
21                computer; or 
 
22           (d)  Located on any paper or in any device on which it
 
23                is stored by a computer or by a human; and 
 

 
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 1      (4)  Computer services.
 
 2      "Use" means:
 
 3      (1)  Attempting to cause or causing a computer or computer
 
 4           network to perform or to stop performing computer
 
 5           operations;
 
 6      (2)  Attempting to cause or causing the withholding or
 
 7           denial of the use of a computer, computer network,
 
 8           computer program, computer data, or computer software
 
 9           to another user; or
 
10      (3)  Attempting to cause or causing another person to put
 
11           false information into a computer.
 
12      "Usenet newsgroup posting" means an electronic message or
 
13 posting by an electronic discussion group in which the users
 
14 share information and opinions with people using the Internet.
 
15      "Without appropriate authority" means:
 
16      (1)  The person has no right or permission of the owner to
 
17           use a computer;
 
18      (2)  The person uses a computer in a manner exceeding such
 
19           right or permission; or
 
20      (3)  The person uses a computer, a computer network, or the
 
21           computer services of an electronic mail service
 
22           provider to transmit unsolicited bulk electronic mail
 
23           in contravention of the authority granted by or in
 

 
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 1           violation of the policies set by the electronic mail
 
 2           service provider.  Transmission of electronic mail from
 
 3           an organization to its members shall not be deemed to
 
 4           be unsolicited bulk electronic mail."
 
 5      SECTION 3.  Chapter 701, Hawaii Revised Statutes, is amended
 
 6 by adding a new section to be appropriately designated and to
 
 7 read as follows:
 
 8      "701-     Time limitation for computer crimes.
 
 9 Notwithstanding the provisions of section 701-108, prosecution of
 
10 a crime under chapter 708, part IX, shall be five years."
 
11      SECTION 4.  Section 708-850, Hawaii Revised Statutes, is
 
12 amended by adding the definition of "forgery" to read as follows:
 
13      ""Forgery" includes the creation, alteration, or deletion of
 
14 any computer data contained in any computer or computer network,
 
15 which if done on a tangible document or instrument would
 
16 constitute forgery under this part.  The absence of a tangible
 
17 writing directly created or altered by the offender shall not be
 
18 a defense to any crime set forth in this part if a creation,
 
19 alteration, or deletion of computer data was involved in lieu of
 
20 a tangible document or instrument."
 
21      SECTION 5.  Section 708-893, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 
23      "[[]708-893[]]  Entry without disruption.(1)  The court
 

 
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 1 may dismiss a prosecution if, having regard to the nature of the
 
 2 conduct alleged and nature of the attendant circumstances, it
 
 3 finds that the defendant's conduct did not actually cause harm or
 
 4 damage to any computer, computer system, computer network, or any
 
 5 of its data or software.  As used in this section, "harm"
 
 6 includes the copying of data even if the original is left intact.
 
 7      (2)  The court shall not dismiss a prosecution under
 
 8 [[]subsection[]] (1) without filing a written statement of its
 
 9 reasons."
 
10      SECTION 6.  Section 711-1106.5, Hawaii Revised Statutes, is
 
11 amended by amending subsection (1) to read as follows:
 
12      "(1)  A person commits the offense of harassment by stalking
 
13 if, with intent to harass, annoy, or alarm another person, or in
 
14 reckless disregard of the risk thereof, that person pursues or
 
15 conducts surveillance upon the other person:
 
16      (a)  Without legitimate purpose; and
 
17      (b)  Under circumstances which would cause the other person
 
18           to reasonably believe that the actor intends to cause
 
19           bodily injury to the other person or another, or damage
 
20           to the property of the other person or another[.]; or
 
21      (c)  By electronic mail, instant messaging, or other
 
22           repeated computer communication without the consent of
 
23           the victim."
 
24      SECTION 7.  Section 708-890, Hawaii Revised Statutes, is
 

 
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 1 repealed.
 
 2      ["[708-890]  Definitions.  As used in this part, unless the
 
 3 context otherwise requires:
 
 4      "Access" means to gain entry to or communicate with a
 
 5 computer, computer system, or computer network.
 
 6      "Computer" means any device which performs logical,
 
 7 arithmetic, and memory functions by the manipulation of
 
 8 electronic or magnetic impulses and includes all input, output,
 
 9 processing, storage, software, or communication facilities which
 
10 are connected or related to such a device in a computer system or
 
11 computer network.
 
12      "Computer equipment" or "hardware" means central processing
 
13 units, microprocessors, data storage and other computer memory
 
14 devices, and computer terminals or similar devices.
 
15      "Computer network" means two or more computer systems
 
16 connected so as to permit the exchange or sharing of data between
 
17 or among them.
 
18      "Computer program" or "software" means a set of computer-
 
19 readable instructions or statements which, when executed by a
 
20 computer system, causes the computer system or the computer
 
21 network to which it is connected to perform computer services.
 
22      "Computer services" means data input, data output, data
 
23 processing, or data storage by or in a computer system or
 

 
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 1 computer network.
 
 2      "Computer system" means computer equipment or hardware
 
 3 connected together and operating under the control of one or more
 
 4 computer programs.
 
 5      "Data" means information stored in a computer system or on
 
 6 electronic media or processed in a computer system.
 
 7      "Disruption" means any deviation from normal operations of
 
 8 any computer, computer system, or computer network.
 
 9      "Injury" includes addition, alteration, damage, deletion,
 
10 destruction, denial of access with respect to data in, or
 
11 functions of, a computer system or computer network.
 
12      "Property" includes financial instruments, data, computer
 
13 software, computer programs, documents associated with computer
 
14 systems and computer programs, or copies, whether tangible or
 
15 intangible, and data while in transit.
 
16      "Without authorization" means without the permission of or
 
17 in excess of the permission of an owner, lessor, or rightful user
 
18 or someone licensed or privileged by an owner, lessor, or
 
19 rightful user to grant such permission."]
 
20      SECTION 8.  Section 708-891, Hawaii Revised Statutes, is
 
21 repealed.
 
22      ["[708-891]  Computer fraud.(1)  A person commits the
 
23 offense of computer fraud if:
 

 
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 1      (a)  The person accesses or causes to be accessed any
 
 2           computer, computer system, computer network, or any of
 
 3           its parts with the intent of devising or executing any
 
 4           scheme or artifice to defraud; or
 
 5      (b)  The person accesses or causes to be accessed any
 
 6           computer, computer system, computer network, or any of
 
 7           its parts with the intent of obtaining money, property,
 
 8           or services by means of embezzlement or false or
 
 9           fraudulent representations; or 
 
10      (c)  The person, without authorization, accesses or causes
 
11           to be accessed any computer, computer system, computer
 
12           network, or any of its parts with the intent of
 
13           obtaining credit information on another person; or
 
14      (d)  The person accesses or causes to be accessed any
 
15           computer, computer system, computer network, or any of
 
16           its parts with the intent of introducing or causing to
 
17           be introduced false information to damage or enhance
 
18           the credit rating of any person.
 
19      (2)  Computer fraud is a class C felony."]
 
20      SECTION 9.  Section 708-892, Hawaii Revised Statutes, is
 
21 repealed.
 
22      ["[708-892]  Unauthorized computer use.  (1)  A person
 
23 commits the offense of unauthorized computer use if the person
 

 
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 1 intentionally and without authorization accesses, alters,
 
 2 injures, disrupts, damages, or destroys any computer, computer
 
 3 system, computer network, computer program, computer software, or
 
 4 any data stored therein.
 
 5      (2)  Unauthorized computer use is a class C felony."]
 
 6      SECTION 10.  This Act does not affect rights and duties that
 
 7 matured, penalties that were incurred, and proceedings that were
 
 8 begun, before its effective date.
 
 9      SECTION 11.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 12.  This Act shall take effect on July 1, 2000.