McNabb Associates is a law firm that practices federal criminal defense with an emphasis on
white-collar crimes and drug crimes.
Federal Criminal Defense Law Firm:
Computer Crimes - Federal Criminal Defense Lawyer
For the purposes of this page, computer crimes encompasses such behavior as accessing electronic communications without authorization, accessing computer systems without authorization, and sending unsolicited commercial email, also known as spam.
18 U.S.C. § 2701 (2007).
The Crime
Under 18 U.S.C. § 2701(a), it is illegal to either intentionally access a facility through which an electronic communication service is provided without authorization or to intentionally exceed authorization to access such a facility, thereby obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage.
The Punishment
Punishment under 18 U.S.C. § 2701(b) for violating section 2701(a) depends on the purpose behind the access. If the access was for the purposes of commercial advantage, malicious destruction or damage, private commercial gain, or in furtherance of any criminal or tortuous act in violation of the Constitution, or Federal or State law, first-time offenders will be fined, imprisoned for not more than 5 years, or both. For any subsequent such violation, then punishment consists of a fine, imprisonment for not more than 10 years, or both. If the purpose of the access was for any other reason, then punishment for a first-time offense consists of a fine, imprisonment for not more than 1 year, or both, while subsequent violations are punished by a fine, imprisonment for not more than 5 years, or both.
Exceptions
Exceptions exist under 18 U.S.C. § 2701(c) for people or entities who provide a wire or electronic communication service, for a user of such a service accessing communications intended for his use.
Definition
The definition of "electronic communication service" is found in 18 U.S.C. § 2510 (2007). It refers to any service that allows its users to send and receive electronic communications, which in turn are defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce." However, wire and oral communications are excepted from this definition, as are tones from a pager, communication from a tracking device, and electronic funds transfer information stored by financial institutions.
Case Law Interpreting Section 2701
An airline company violated section 2701(a)(1) when an airline official gained access to a pilot's secure website by using two other pilot's names to establish accounts and passwords, because the two pilots were not "users" of the website at the time they authorized the official to use their names. Konop v. Hawaiian Airlines, Inc. 302 F.3d 868, 880 (9th Cir. 2002).
However, in a different case, when a company accessed an insurance agent's e-mail without authorization, there was no violation of privacy laws because there was no interception of e-mail within the meaning of privacy laws, and because section 2701(c) provided protection to the company because it provided a wire or electronic communications service. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003).
If a person has authorization to access a database, there can be no violation of section 2701, not matter how maliciously or larcenously that access is used. Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817, 821 (E.D. Mich. 2000).