Computers and the Law
Randy Canis
CLASS 13
Metatags and Keywords;
Spyware;
Computer Crimes
1
Metatags
2
2
Introduction to Metatags
• Metatags – text used in the header of an
html web page used by search engines to
determine or describe the content of the
particular webpage
• Content – a list of words that indicates the
type of content on a particular web page
• Description – a human readable sentence
intended to be displayed by a search
engine when a particular page of a web site
is presented in search engine results
3
3
Playboy Enterprises v. Terri Welles
Factual Background
• Plaintiff Playboy Enterprises, Inc. (PEI) is an international
publishing and entertainment company. … PEI has
established two websites. According to Plaintiff, its free
website, http://www.playboy.com, has become one of the
most popular sites on the Web and is used to promote its
magazine, goods, and services. Its other website, called the
"Playboy Cyber Club," http://www.cyber.playboy.com, is
devoted to promoting current and former PEI models.
• PEI owns federally registered trademarks for the terms
Playboy, Playmate, Playmate of the Month, and Playmate of
the Year. The term Playmate of the Year is sometimes
abbreviated "PMOY." PEI does not have a federally
registered trademark in the abbreviation "PMOY," although
PEI argues that "PMOY" is worthy of trademark protection
because it is a well-known abbreviation for the trademark
Playmate of the Year.
4
4
Playboy Enterprises v. Terri Welles
Factual Background
• Defendant Terri Welles is a self-employed model and
spokesperson, who began her modeling career with Playboy
magazine in 1980. In May of 1980, Ms. Welles appeared on
the cover of Playboy magazine and was subsequently
featured as the "Playmate of the Month" in the December
1980 issue. Ms. Welles received the "Playmate of the Year"
award in June of 1981. Since 1980, Ms. Welles has
appeared in no less than thirteen (13) issues of Playboy
magazine and eighteen (18) newsstand specials published by
PEI. Ms. Welles claims that since 1980 she has always
referred to herself as a "Playmate" or "Playmate of the Year"
with the knowledge of PEI.
5
5
Playboy Enterprises v. Terri Welles
• How is Welles using the mark on her
website?
– Headlines and banner advertisements
– Metatags
– Wallpaper
6
6
Playboy Enterprises v. Terri Welles
Nominative Use Test:
• “First, the product or service in question must be
one not readily identifiable without use of the
trademark;
• second, only so much of the mark or marks may be
used as is reasonably necessary to identify the
product or service; and
• third, the user must do nothing that would, in
conjunction with the mark, suggest sponsorship or
endorsement by the trademark holder.
• We noted in New Kids that a nominative use may
also be a commercial one. “
7
7
Playboy Enterprises v. Terri Welles
Conclusions:
• Headlines and banner advertisements 
nominative
• Use of the terms in the metatags for
Welles' websitenominative
• Use in the wallpaper of the website. not
nominative (and remand for a
determination of whether it infringes on a
PEI trademark).
Let’s look at the decision to determine how
the court came to this decision.
8
8
Promatek Industries, Ltd. v. Equitrac Corp.
Factual Background
• Promatek and Equitrac are competitors in selling cost-recovery
equipment.
• Equitrac's marketing department advised its web designer that
certain words and phrases should be used as metatags for
Equitrac's website.
• In response, the web designer placed the term "Copitrack" in the
contents of Equitrac's website as a metatag.
• Equitrac used the term as a metatag because it provides
maintenance and service on Copitrak equipment, a product used in
the cost-recovery business.
• Promatek holds the trademark for Copitrak, and once it learned of
Equitrac's use of the term Copitrack in the metatag, it brought suit.
• After learning of Promatek's suit, Equitrac contacted all of the
search engines known to it and requested that they remove any
link between the term Copitrack and Equitrac's website.
• Equitrac also removed the Copitrack metatag from its website.
9
9
Promatek Industries, Ltd. v. Equitrac Corp.
• The mark "Copitrak" is a registered trademark of
Promatek Industries, Ltd., which can be found at
www.promatek.com or www.copitrak.com.
• Equitrac appeals the issuance of the injunction,
arguing that the ordered language will not only
inform consumers of its competitor, Promatek, but
will encourage people to go to Promatek's website.
Promatek counters that without this language,
Equitrac will continue to benefit, to Promatek's
detriment, from consumer internet searches
containing the word Copitrack.
10
10
Promatek Industries, Ltd. v. Equitrac Corp.
• “In assessing the likelihood of consumer confusion, we
consider: (1) the similarity between the marks in appearance
and suggestion, (2) the similarity of the products, (3) the area
and manner of concurrent use of the products, (4) the degree
of care likely to be exercised by consumers, (5) the strength
of the plaintiff's marks, (6) any evidence of actual confusion,
and (7) the defendant's intent to palm off its goods as those of
the plaintiff's. Ty, 237 F.3d at 897-98. None of these factors
are dispositive and the proper weight given to each will vary
in each case. Id. However, the similarity of the marks, the
defendant's intent, and evidence of actual confusion are of
particular importance. Id.”
11
11
Promatek Industries, Ltd. v. Equitrac Corp.
• Why does Promatek have a fair likelihood
of succeeding on the merits?
– The marks Copitrack and Copitrak similar
(Equitrac admits that it meant to use the correct
spelling of Copitrak in its metatag)
– Equitrac's use of Copitrack refers to Promatek's
registered trademark, Copitrak.
– Equitrac and Promatek are direct competitors in
the cost-recovery and cost-control equipment
and services market.
– The degree of care to be exercised by
consumers
12
12
Promatek Industries, Ltd. v. Equitrac Corp.
• “Although Equitrac claims that it did not
intend to mislead consumers with respect to
Copitrak, the fact remains that there is a
strong likelihood of consumer confusion as
a result of its use of the Copitrack metatag.
The degree of care exercised by
consumers could lead to initial interest
confusion.
13
13
Promatek Industries, Ltd. v. Equitrac Corp.
• What is initial interest confusion?
– Initial interest confusion, which is actionable under
the Lanham Act, occurs when a customer is lured to
a product by the similarity of the mark, even if the
customer realizes the true source of the goods
before the sale is consummated. Dorr-Oliver, Inc. v.
Fluid-Quip, Inc., 94 F.3d 376, 382 (7th Cir. 1996).”
• What if the consumers that viewed the
website knew right away that the website
was not associated with the trademark
owner?
14
Promatek Industries, Ltd. v. Equitrac Corp.
• “The Ninth Circuit has dealt with initial interest
confusion for websites and metatags and held that
placing a competitor's trademark in a metatag creates a
likelihood of confusion. … Equitrac's placing the term
Copitrack in its metatag, consumers are diverted to its
website and Equitrac reaps the goodwill Promatek
developed in the Copitrak mark. Id. That consumers
who are misled to Equitrac's website are only briefly
confused is of little or no consequence. In fact, "that
confusion as to the source of a product or service is
eventually dispelled does not eliminate the trademark
infringement which has already occurred." Forum Corp.
of N. Am. v. Forum, Ltd., 903 F.2d 434, 442 n.2 (7th Cir.
1990).”
15
15
Promatek Industries, Ltd. v. Equitrac Corp.
• “What is important is not the duration of the confusion, it
is the misappropriation of Promatek's goodwill. Equitrac
cannot unring the bell. As the court in Brookfield
explained, "using another's trademark in one's metatags
is much like posting a sign with another's trademark in
front of one's store." Brookfield, 174 F.3d at 1064.
Customers believing they are entering the first store
rather than the second are still likely to mill around
before they leave. The same theory is true for websites.
Consumers who are directed to Equitrac's webpage are
likely to learn more about Equitrac and its products
before beginning a new search for Promatek and
Copitrak. Therefore, given the likelihood of initial
consumer confusion, the district court was correct in
finding Promatek could succeed on the merits.”
16
16
Promatek Industries, Ltd. v. Equitrac Corp.
• Holding
– We conclude that the district court was
correct in finding Promatek would suffer
a greater harm than Equitrac if corrective
measures were not taken, and we affirm
the grant of the preliminary injunction.
17
17
Jurisdiction from Keywords
• Is use of a competitor’s trademark in
the metatags of your website sufficient
to cause you to be subject to personal
jurisdiction in competitor’s forum
state?
18
Keywords
19
19
1-800 Contacts v. WhenU.com
• Defendant WhenU – creator of software that
provides Internet users with “pop-up ads” relating
to the users Internet activity
• Plaintiff 1-800 Contacts – distributor that sells
contact lenses and related products by mail,
telephone and web
20
20
1-800 Contacts v. WhenU.com
• To what behavior of the Defendant has Plaintiff
objected?
• “When the SaveNow software recognizes a term, it
randomly selects an advertisement from the
corresponding product or service category to
deliver to the C-user's computer screen at roughly
the same time the website or search result sought
by the C-user appears. … Each type of ad appears
in a window that is separate from the particular
website or search-results page the C-user has
accessed.”
• How easy is it for the Internet user to uninstall the
software?
21
21
1-800 Contacts v. WhenU.com
•
•
•
•
What are the causes of actions?
1114(1) – registered trademarks
1125(a)(1) – unregistered trademarks
“a plaintiff must establish that (1) it has a valid
mark that is entitled to protection under the
Lanham Act; and that (2) the defendant used the
mark, (3) in commerce, (4) ‘in connection with the
sale . . . or advertising of goods or services,’ 15
U.S.C. § 1114(1)(a), (5) without the plaintiff's
consent.”
22
22
1-800 Contacts v. WhenU.com
• How did the district court hold with respect
to use in commerce?
– Causing pop-up advertisements for Defendant
to appear when users of the Software have
specifically attempted to access Plaintiff’s
website
– Includes Plaintiff's website address and
trademark in Defendant’s directory of terms that
triggers pop-up advertisements
• How did prior courts rule?
23
23
1-800 Contacts v. WhenU.com
SaveNow Directory
• Court’s analysis focuses on the differences
between use of a trademark and a URL:
• “… a WhenU pop-up ad cannot be triggered
by a C-user's input of the 1-800 trademark
or the appearance of that trademark on a
webpage accessed by the c-user.”
24
24
1-800 Contacts v. WhenU.com
SaveNow Directory
• “In contrast to some of its competitors, moreover,
WhenU does not disclose the proprietary contents of
the SaveNow directory to its advertising clients nor
does it permit these clients to request or purchase
specified keywords to add to the directory. …
• A company's internal utilization of a trademark in a way
that does not communicate it to the public is analogous
to a individual's private thoughts about a trademark.
Such conduct simply does not violate the Lanham Act,
which is concerned with the use of trademarks in
connection with the sale of goods or services in a
manner likely to lead to consumer confusion as to the
source of such goods or services.”
25
25
1-800 Contacts v. WhenU.com
Pop-up Advertisements
• “The fatal flaw with [concluding that placement
of pop-up ads] is that WhenU's pop-up ads do
not display the 1-800 trademark.”
• “[T]he appearance of WhenU's pop-up ad is
not contingent upon or related to 1-800's
trademark, the trademark's appearance on 1800's website, or the mark's similarity to 1800's website address.”
26
26
1-800 Contacts v. WhenU.com
• Why does the court compare the activity
to product placement at drug stores?
27
27
1-800 Contacts v. WhenU.com
Distinguished from past decisions because:
• Does not alter source website
• Does not divert or misdirect users away from
source website
• Does not "sell" keyword trademarks to its
customers or otherwise manipulate which
category-related advertisement will pop up in
response to any particular terms on the
internal directory
– does not link trademarks to any particular
competitor's ads, and a customer cannot pay
to have its pop-up ad appear on any specific
website or in connection with any particular
trademark.
28
28
1-800 Contacts v. WhenU.com
• “We hold that, as a matter of law, WhenU does not
"use" 1-800's trademarks within the meaning of the
Lanham Act, 15 U.S.C. §1127, when it (1) includes 1800's website address, which is almost identical to 1800's trademark, in an unpublished directory of terms
that trigger delivery of WhenU's contextually relevant
advertising to C-users; or (2) causes separate, branded
pop-up ads to appear on a C-user's computer screen
either above, below, or along the bottom edge of the 1800 website window. Accordingly, we reverse the
district court's entry of a preliminary injunction and
remand with instructions to (1) dismiss with prejudice 1800's trademark infringement claims against WhenU,
and (2) proceed with 1-800's remaining claims.”
29
29
Playboy v. Netscape
• “Defendants have various lists of terms to which
they key advertisers' banner ads. Those lists
include the one at issue in this case, a list
containing terms related to sex and adult-oriented
entertainment. Among the over-400 terms in this
list are two for which PEI holds trademarks:
‘playboy’ and ‘playmate.’ Defendants require adultoriented companies to link their ads to this set of
words. Thus, when a user types in ‘playboy,’
‘playmate,’ or one of the other listed terms, those
companies' banner ads appear on the search
results page.”
30
30
Playboy v. Netscape
• What are Keywords and how are the
used in searching?
• What are banner advertisements and
sponsored links?
• What is at stake in this case?
31
31
Playboy v. Netscape
• Trademark infringement
• Direct or Contributory? - “We conclude that
defendants are potentially liable under one theory
and that we need not decide which one.”
• Likelihood of Confusion - We conclude that a
genuine issue of material fact does exist regarding
the likelihood of consumer confusion resulting from
defendants' use of PEI's marks.
• Affirmative Defenses? – “We conclude that no
defenses apply.”
32
32
Playboy v. Netscape
• “Initial interest confusion is customer
confusion that creates initial interest in
a competitor's product. Although
dispelled before an actual sale occurs,
initial interest confusion impermissibly
capitalizes on the goodwill associated
with a mark and is therefore
actionable trademark infringement.”
33
33
Playboy v. Netscape
• Initial Interest Confusion theory
• “Because banner advertisements appear immediately after
users type in PEI's marks, PEI asserts that users are likely to
be confused regarding the sponsorship of unlabeled banner
advertisements. n16 In addition, many of the advertisements
instruct users to ‘click here.’ Because of their confusion, users
may follow the instruction, believing they will be connected to
a PEI cite. Even if they realize ‘immediately upon accessing’
the competitor's site that they have reached a site ‘wholly
unrelated to’ PEI's, the damage has been done: Through
initial consumer confusion, the competitor ‘will still have
gained a customer by appropriating the goodwill that [PEI]
has developed in its [] mark.’”
34
34
Google Adwords
• Adwords enables paid advertisements
that match specific keywords
• Adwords has different trademark
usage in advertising content v. usage
as keyword
35
Content v. Keyword
• Content
– Descriptive Fair Use
– Nominative Fair Use
– Authorized to sell under the trademark
– Does not sell products that compete
directly with products sold under the
trademark
• Keywords
– No trademark restrictions
36
Possible Cause of Actions
• Trademark Infringement
– Initial Interest Confusion
• Trademark Dilution
• False Advertising
• Unfair competition
37
1-800 Contacts v. Lens.com
• “We must resolve whether the
Lanham Act was violated by an
advertiser’s use of keywords that
resembled a competitor’s service
mark. For the most part, we hold that
there was no violation.”
38
1-800 Contacts v. Lens.com
• Parties
• 1-800 Contacts
– Replacement contact lens
• Lens.com
– Competitor of 1-800 contacts
39
1-800 Contacts v. Lens.com
• History
– 1-800 Contacts determined usage of marks
as keywords and tried to settle
– Sued for trademark infringement D.C. Utah
• Trademark infringement through initial
interest confusion
• Secondarily liable (agency and contributory
infringement) through affiliates conduct
– D.C. awarded summary judgment to
Lens.com on all claims
40
1-800 Contacts v. Lens.com
• Adwords
– Organic results
– Sponsored links with advertising copy
• Above or to the right of the organic results
• Notice of sponsored links
• Shading to set them apart
– Advertisers pay per impression
41
1-800 Contacts v. Lens.com
• Direct confusion – when consumers
believe that P is source of D goods or
services
• Reverse confusion – when consumers
believe that D is source of P goods or
services
• Initial interest confusion – lured to the
product of a competitor through use of
a trademark
42
1-800 Contacts v. Lens.com
• “[A] consumer enters a query for ‘1-800
Contacts’ on Google; sees a screen with an
ad for Lens.com that is generated because
of Lens.com’s purchase of one of the nine
Challenged Keywords; becomes confused
about whether Lens.com is the same
source as, or is affiliated with, 1-800; and
therefore clicks on the Lens.com ad to view
the site.”
43
1-800 Contacts v. Lens.com
• “[I]nitial-interest confusion occurred at
most 1.5% of the time that a Lens.com
ad was generated by a Challenged
Keyword in those eight months. This
number cannot support an inference
that Lens.com’s keyword activity was
likely to ‘lure[]’ consumers away from
1-800.”
44
1-800 Contacts v. Lens.com
• “[T]he Ninth Circuit considered ‘the
labeling and appearance of the
advertisements and the surrounding
context on the screen displaying the
results page’ to be a critical factor in
finding no likelihood of confusion in a
case in which the alleged infringer
used a competitor’s mark as a
keyword.”
45
Other Cases
• Rosetta Stone v. Google
– Settled out of court
• Infostream Grp. Inc. v. Avid Life Media Inc.
(C.D.CA 2013)
– Use of trademarks to trigger ads in search engine
without more was not trademark infringement
46
Spyware
47
Sotelo v. Directrevnue
• Stephen Sotelo (P)
• DirectRevenue Holdings, AccuQuote,
and aQuantative (D)
• Nature of dispute – spyware installed
without P consent
48
Sotelo v. Directrevnue
•
•
•
•
•
What does P allege that D has done?
How is the software downloaded?
What is the EULA?
Why isn’t the EULA approved?
What bad stuff is D accused of doing?
49
Sotelo v. Directrevnue
• Trespass to chattels
– “A trespass to a chattel may be committed by
intentionally (a) dispossessing another of a
chattel, or (b) using or intermeddling with a
chattel in possession of another.”
• What is plaintiff’s allegation?
• Did the court find that trespass to chattels
was applicable?
• Why did the court find in favor of the P?
50
Sotelo v. Directrevnue
• Other causes of action
– Illinois Consumer Fraud Act – not
dismissed
– Unjust enrichment – dismissed
– Negligence – not dismissed
– Computer tampering – not dismissed
51
Computer Crimes
• Cyber pornography
• Computer Intrusion
• Other types of crimes
52
What is criminal law?
• Crime is a wrong against society
proclaimed in a statute and
punishable by a fine and/or
imprisonment (or death)
53
Felonies
• Serious crimes punishable by death or
by imprisonment in a federal or state
penitentiary for one year or longer
• Four Degrees of Felony (from Model
Penal Code)
– Capital offenses—death penalty
– First degree felonies—life in prison (max)
– Second degree felonies—10 years (max)
– Third degree felonies—5 years (max)
54
Misdemeanors and Petty
Offenses
• Misdemeanor
– any crime that is not a felony
– Punishable by a fine of by incarceration
for up to one year
• Petty Offenses
– Subset of misdemeanors
– Minor violations
– Jail for a few days and/or fine
55
U.S. v. Crow
•
•
•
Chuck Esposito ("Esposito"), a detective with the Clearwater, Florida
Police Department, conducted an undercover child sexual abuse
and pornography investigation by logging onto various "chat rooms."
Esposito represented himself to be a thirteen year old girl. His
screen name was StephieFL and the attached profile revealed, in
part, his assumed identity as Stephanie, a single female from
Clearwater, Florida, born on January 26, 1983. …
On August 8, 1996, Esposito encountered Appellant, William R.
Crow ("Crow"), in a "Pre-teen" chat room on the Internet. Crow
utilized the screen name VideoDom and his profile indicated that he
was a male from Texas whose name was Bill. Crow's profile on the
Internet read: "seeking young slender amateur women interested in
making very explicit adult videos!" His personal quote stated, "I am
very $ generous$ if you are good and nasty! Email me for an
interview! I travel!"
Crow therefore sent several explicit pictures to StephieFL…
56
U.S. v. Crow
•
•
•
“Crow asked permission to call StephieFL to verify her identity.
When she declined, he gave her a telephone number and hours
during which she could call him. Crow asked StephieFL her age and
she told him she was ‘13.’”
“Throughout their contact, which occurred via the Internet and email, Crow continued to provide StephieFL with sexually explicit
photographs of pre-pubescent and pubescent girls while requesting
voice verification.”
“In late September of 1996, StephieFL had secured a mailing
address and informed Crow that she had forwarded a video. A
twenty-nine year old secretary for the Midland, Texas Police
Department phoned Crow at his place of employment, identified
herself and left a message for him. A receptionist left the message
on Crow's desk. United States Postal Inspector Ron Massey
arranged a controlled delivery of a videotape to Crow. The video
tape, which Massey had received from the Dallas Police
Department, presented a young female performing the type of
sexually explicit conduct Stephanie had described recording for
Crow. On September 30, 1996, Crow was arrested as he left the
post office with the videotape. “
57
U.S. v. Crow
•
•
“On October 17, 1996, the grand jury returned a six count indictment against
Crow. Counts one, two and three charged him with interstate shipment of
visual depictions of minors engaged in sexually explicit conduct in violation of
18 U.S.C. § 2252(a)(1)(B). Count four charged attempted sexual exploitation
of a minor in violation of 18 U.S.C. § 2251(a) and (d), while count five
charged Crow with receipt of interstate shipment of visual depiction of minors
engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2).
Finally, count six alleged possession of three or more visual depictions of
minors engaged in sexually explicit conduct in violation of 18 U.S.C. §
2252(a)(4).
At trial, Crow admitted to using the name VideoDom to send, via interstate
commerce, the visual depictions of minors engaged in sexually explicit
conduct as alleged in counts one, two and three. Crow also admitted to
possessing three or more visual depictions of minors engaged in sexually
explicit conduct as alleged in count six. Crow admitted guilt to those counts,
but maintained his innocence with regard to counts four and five. A jury
convicted Crow on all counts. On September 11, 1997, Crow was sentenced
to ninety-seven months imprisonment on counts one through five, and to a
concurrent sixty months imprisonment on count six. A fine and supervised
release were imposed. On September 19, 1997, the trial court entered its
judgment. This appeal followed.
58
U.S. v. Crow
•
•
•
“Crow claims that the allegation charged in count four of the
indictment did not satisfy the minimum constitutional requirements
because: (1) it failed to state an offense under 18 U.S.C. § 2251;
and (2) it failed to state an essential element of the crime requiring
that the person exploited through various means must be a "minor."
Crow, in challenging the sufficiency of the indictment, focuses on the
indictment's phrase "a person whom the defendant believed was a
13 year old female." He contends that the statute requires that the
individual exploited or that the defendant attempted to exploit had to
actually be a minor.”
“Crow contends that section 2251 should be interpreted to require
the individual involved to actually be a minor female, and not merely
a person believed to be a minor female. Crow asserts that the
indictment is insufficient because the statutory language provides
that the person must be a minor and the indictment fails to reflect
the statute's intent.”
The rest of the case seems like a plea bargain gone bad…
59
Federal Criminal Code Related to
Computer Intrusions
Federal Criminal Code Related to Computer Intrusions:
• 18 U.S.C. § 1029. Fraud and Related Activity in
Connection with Access Devices
• 18 U.S.C. § 1030. Fraud and Related Activity in
Connection with Computers
• 18 U.S.C. § 1362. Communication Lines, Stations, or
Systems
• 18 U.S.C. § 2510 et seq. Wire and Electronic
Communications Interception and Interception of Oral
Communications
• 18 U.S.C. § 2701 et seq. Stored Wire and Electronic
Communications and Transactional Records Access
• 18 U.S.C. § 3121 et seq. Recording of Dialing, Routing,
Addressing, and Signaling Information
http://www.cybercrime.gov/cclaws.html
60
Computer Fraud and Abuse Act (CFAA)
• Crimes under the CFAA:
– Knowingly commit espionage by accessing information
without authorization or exceeding authorized access;
– Access other information without authorization or
exceeding authorized access;
– Access any nonpublic government computer;
– Access any computer with an intent to commit fraud;
– Knowingly or intentionally damage a computer;
– Knowingly traffic in passwords;
– Threaten to cause damage to a computer with the intent
to extort money or other things of value
61
CFAA Penalties
• Obtaining National Security Information Section
(a)(1) 10 years
• Accessing a Computer and Obtaining Information
Section (a)(2)  1 or 5 years
• Trespassing in a Government Computer Section
(a)(3)  1 year
• Accessing a Computer to Defraud & Obtain Value
Section (a)(4)  5 years
• Intentionally Damaging by Knowing Transmission
Section (a)(5)(A)  1 or 10 years
62
CFAA Penalties
• Recklessly Damaging by Intentional Access
Section (a)(5)(B)  1 or 5 years
• Negligently Causing Damage & Loss by Intentional
Access Section (a)(5)(C)  1 year
• Trafficking in Passwords Section (a)(6)  1 year
• Extortion Involving Computers Section (a)(7)  5
years
63
Protected Computer
• Section 1030(e)(2) defines protected computer as:
a computer—
(A) exclusively for the use of a financial institution
or the United States Government, or, in the case of
a computer not exclusively for such use, used by or
for a financial institution or the United States
Government and the conduct constituting the
offense affects that use by or for the financial
institution or the Government; or
(B) which is used in or affecting interstate or
foreign commerce or communication . . . .
64
Insiders v. Outsiders
• Insiders – exceed authorized access
• Outsiders – without authorization
65
Exceeds Authorized Access
• The term “exceeds authorized access”
means “to access a computer with
authorization and to use such access
to obtain or alter information in the
computer that the accesser is not
entitled so to obtain or alter.”
• Without authorization is not defined…
66
Exceeds Authorized Access
• “It is relatively easy to prove that a
defendant had only limited authority to
access a computer in cases where the
defendant’s access was limited by
restrictions that were memorialized in
writing, such as terms of service, a
computer access policy, a website
notice, or an employment agreement
or similar contract.”
67
Obtaining National Security Information
1030(a)(1) Summary (Felony)
1. Knowingly access computer without or in excess of
authorization
2. obtain national security information
3. reason to believe the information could injure the
U.S. or benefit a foreign nation
4. willful communication, delivery, transmission (or
attempt) OR willful retention of the information
68
Accessing
a Computer and Obtaining Information
1030(a)(2) Summary (Misd.)
1. Intentionally access a computer
2. without or in excess of authorization
3. obtain information
4. from financial records of financial institution
or consumer reporting agency OR the U.S.
government OR a protected computer
69
Accessing
a Computer and Obtaining Information
(Felony)
5. committed for commercial advantage
or private financial gain OR committed
in furtherance of any criminal or
tortious act OR the value of the
information obtained exceeds $5,000
70
Trespassing in a
Government Computer
1030(a)(3) Summary (Misd.)
1. Intentionally access
2. without authorization
3. a nonpublic computer of the U.S. that
was exclusively for the use of U.S. or
was used by or for U.S.
4. affected U.S. use of computer
71
Accessing to Defraud and
Obtain Value
1030(a)(4) Summary (Felony)
1. Knowingly access a protected computer
without or in excess of authorization
2. with intent to defraud
3. access furthered the intended fraud
4. obtained anything of value, including use if
value exceeded $5000
72
Damaging a Computer or
Information
Summary of (a)(5)(A)
1. Knowingly cause transmission of a
program, information, code, or
command
2. intentionally cause damage to
protected computer without
authorization
73
Damaging a Computer or
Information
Summary of (a)(5)(B)
1. Intentionally access a protected
computer without authorization
2. recklessly cause damage
74
Damaging a Computer or
Information
Summary of (a)(5)(C)
1. Intentionally access a protected
computer without authorization
2. cause damage
3. cause loss
75
Felony
3. resulting in loss of $5,000 during 1 year OR
modifies medical care of a person OR
causes physical injury OR threatens public
health or safety OR damages systems used
by or for government entity for
administration of justice, national defense,
or national security OR damages affect 10
or more protected computers during 1 year
76
Trafficking in Passwords
1030(a)(6) Summary (Misd.)
1. Trafficking
2. in computer password or similar
information
3. knowingly and with intent to defraud
4. trafficking affects interstate or foreign
commerce OR computer used by or for
U.S.
77
Threatening to Damage a
Computer
1030(a)(7) Summary (Felony)
1. With intent to extort money or any other thing of
value
2. transmits in interstate or foreign commerce a
communication
3. containing a: threat to damage a protected
computer OR threat to obtain or reveal confidential
information without or in excess of authorization
OR demand or request for money or value in
relation to damage done in connection with the
extortion.
78
U.S. v. Morris
•
•
“This appeal presents two narrow issues of statutory construction concerning
a provision Congress recently adopted to strengthen protection against
computer crimes. Section 2(d) of the Computer Fraud and Abuse Act of
1986, 18 U.S.C. § 1030(a)(5)(A) (1988), punishes anyone who intentionally
accesses without authorization a category of computers known as ‘federal
interest computers’ and damages or prevents authorized use of information
in such computers, causing loss of $ 1,000 or more. The issues raised are
(1) whether the Government must prove not only that the defendant intended
to access a federal interest computer, but also that the defendant intended to
prevent authorized use of the computer's information and thereby cause
loss; and (2) what satisfies the statutory requirement of ‘access without
authorization.’”
“These questions are raised on an appeal by Robert Tappan Morris from the
May 16, 1990, judgment of the District Court for the Northern District of New
York (Howard G. Munson, Judge) convicting him, after a jury trial, of violating
18 U.S.C. § 1030(a)(5)(A). Morris released into INTERNET, a national
computer network, a computer program known as a ‘worm’ that spread and
multiplied, eventually causing computers at various educational institutions
and military sites to ‘crash’ or cease functioning. “
79
U.S. v. Morris
• Holding: We conclude that section
1030(a)(5)(A) does not require the
Government to demonstrate that the
defendant intentionally prevented
authorized use and thereby caused loss.
We also find that there was sufficient
evidence for the jury to conclude that Morris
acted "without authorization" within the
meaning of section 1030(a)(5)(A). We
therefore affirm.
80
U.S. v. Morris
• “In October 1988, Morris began work on a computer program,
later known as the INTERNET "worm" or "virus." The goal of
this program was to demonstrate the inadequacies of current
security measures on computer networks by exploiting the
security defects that Morris had discovered. The [**4] tactic
he selected was release of a worm into network computers.
Morris designed the program to spread across a national
network of computers after being inserted at one computer
location connected to the network. Morris released the worm
into INTERNET, which is a group of national networks that
connect university, governmental, and military computers
around the country. The network permits communication and
transfer of information between computers on the network.”
• “Morris sought to program the INTERNET worm to spread
widely without drawing attention to itself. …”
81
U.S. v. Morris
• Morris identified four ways in which the worm could break into
computers on the network:
• (1) through a "hole" or "bug" (an error) in SEND MAIL, a
computer program that transfers and receives electronic mail
on a computer;
• (2) through a bug in the "finger demon" program, a program
that permits a person to obtain limited information about the
users of another computer;
• (3) through the "trusted hosts" feature, which permits a user
with certain privileges on one computer to have equivalent
privileges on another computer without using a password;
and
• (4) through a program of password guessing, whereby
various combinations of letters are tried out in rapid sequence
in the hope that one will be an authorized user's password,
which is entered to permit whatever level of activity that user
is authorized to perform.”
82
U.S. v. Morris
• “On November 2, 1988, Morris released the worm from a
computer at the Massachusetts Institute of Technology. MIT
was selected to disguise the fact that the worm came from
Morris at Cornell. Morris soon discovered that the worm was
replicating and reinfecting machines at a much faster rate
than he had anticipated. Ultimately, many machines at
locations around the country either crashed or became
"catatonic." When Morris realized what was happening, he
contacted a friend at Harvard to discuss a solution.
Eventually, they sent an anonymous message from Harvard
over the network, instructing programmers how to kill the
worm and prevent reinfection. However, because the network
route was clogged, this message did not get through until it
was too late. Computers were affected at numerous
installations, including leading universities, military sites, and
medical research facilities. The estimated cost of dealing with
the worm at each installation ranged from $ 200 to more than
$ 53,000.”
83
U.S. v. Morris
• Morris was found guilty, following a
jury trial, of violating 18 U.S.C. §
1030(a)(5)(A). He was sentenced to
three years of probation, 400 hours of
community service, a fine of $ 10,050,
and the costs of his supervision.
84
U.S. v. Morris
The intent requirement in Section 1030(a)(5)(A)
• Section 1030(a)(5)(A), covers anyone who (5)
intentionally accesses a Federal interest computer
without authorization, and by means of one or
more instances of such conduct alters, damages,
or destroys information in any such Federal interest
computer, or prevents authorized use of any such
computer or information, and thereby (A) causes
loss to one or more others of a value aggregating $
1,000 or more during any one year period; ...
[emphasis added].
85
U.S. v. Morris
Analysis of the legislative history…
• “Despite some isolated language in the
legislative history that arguably suggests a
scienter component for the "damages"
phrase of section 1030(a)(5)(A), the
wording, structure, and purpose of the
subsection, examined in comparison with
its departure from the format of its
predecessor provision persuade us that the
"intentionally" standard applies only to the
"accesses" phrase of section 1030(a)(5)(A),
and not to its "damages" phrase.”
86
Copyright Legislation
• Family Entertainment and Copyright Act of
2005
– S.167/H.R.357
• Title I--Artists' Rights And Theft
Prevention
• Title II--Exemption From Infringement For
Skipping Audio And Video Content In
Motion Pictures
• Title III--National Film Preservation
• Title IV--Preservation Of Orphan Works
87
Artists' Rights and Theft Prevention
(a) In General- Chapter 113 of title 18, United States Code, is amended
by adding after section 2319A the following new section:
• Sec. 2319B. Unauthorized recording of Motion pictures in a
Motion picture exhibition facility
• (a) Offense- Any person who, without the authorization of the
copyright owner, knowingly uses or attempts to use an audiovisual
recording device to transmit or make a copy of a motion picture or
other audiovisual work protected under title 17, or any part thereof,
from a performance of such work in a motion picture exhibition
facility, shall-(1) be imprisoned for not more than 3 years, fined under this title, or both;
or
(2) if the offense is a second or subsequent offense, be imprisoned for no
more than 6 years, fined under this title, or both.
•
The possession by a person of an audiovisual recording device in a
motion picture exhibition facility may be considered as evidence in
any proceeding to determine whether that person committed an
offense under this subsection, but shall not, by itself, be sufficient to
support a conviction of that person for such offense.
88
Artists' Rights and Theft Prevention
•
•
•
(b) Forfeiture and Destruction- When a person is convicted of a violation of
subsection (a), the court in its judgment of conviction shall, in addition to any
penalty provided, order the forfeiture and destruction or other disposition of
all unauthorized copies of motion pictures or other audiovisual works
protected under title 17, or parts thereof, and any audiovisual recording
devices or other equipment used in connection with the offense.
(c) Authorized Activities- This section does not prevent any lawfully
authorized investigative, protective, or intelligence activity by an officer,
agent, or employee of the United States, a State, or a political subdivision of
a State, or by a person acting under a contract with the United States, a
State, or a political subdivision of a State.
(d) Immunity for Theaters- With reasonable cause, the owner or lessee of a
motion picture exhibition facility where a motion picture or other audiovisual
work is being exhibited, the authorized agent or employee of such owner or
lessee, the licensor of the motion picture or other audiovisual work being
exhibited, or the agent or employee of such licensor-(1) may detain, in a reasonable manner and for a reasonable time, any
person suspected of a violation of this section with respect to that motion
picture or audiovisual work for the purpose of questioning or summoning
a law enforcement officer; and
(2) shall not be held liable in any civil or criminal action arising out of a
detention under paragraph (1).
89
Artists' Rights and Theft Prevention
•
(e) Victim Impact Statement(1) IN GENERAL- During the preparation of the presentence report under
rule 32(c) of the Federal Rules of Criminal Procedure, victims of an
offense under this section shall be permitted to submit to the probation
officer a victim impact statement that identifies the victim of the offense
and the extent and scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense on that victim.
(2) CONTENTS- A victim impact statement submitted under this subsection
shall include-(A) producers and sellers of legitimate works affected by conduct involved in the
offense;
(B) holders of intellectual property rights in the works described in subparagraph
(A); and
(C) the legal representatives of such producers, sellers, and holders.
•
(f) State Law Not Preempted- Nothing in this section may be
construed to annul or limit any rights or remedies under the laws of
any State.
90
Artists' Rights and Theft Prevention
•
(g) Definitions- In this section, the following definitions shall apply:
–
–
(1) TITLE 17 DEFINITIONS- The terms `audiovisual work', `copy', `copyright
owner', `motion picture', `motion picture exhibition facility', and `transmit' have,
respectively, the meanings given those terms in section 101 of title 17.
(2) AUDIOVISUAL RECORDING DEVICE- The term `audiovisual recording device'
means a digital or analog photographic or video camera, or any other technology or
device capable of enabling the recording or transmission of a copyrighted motion
picture or other audiovisual work, or any part thereof, regardless of whether
audiovisual recording is the sole or primary purpose of the device.'.
(b) Clerical Amendment- The table of sections at the beginning of chapter 113 of
title 18, United States Code, is amended by inserting after the item relating to
section 2319A the following:
• …
(c) Definition- Section 101 of title 17, United States Code, is amended by
inserting after the definition of `Motion pictures' the following: `The term
`motion picture exhibition facility' means a movie theater, screening room, or
other venue that is being used primarily for the exhibition of a copyrighted
motion picture, if such exhibition is open to the public or is made to an
assembled group of viewers outside of a normal circle of a family and its
social acquaintances.'.
91
Criminal Infringement of a Work Being
Prepared for Commercial Distribution.
(a) Prohibited Acts- Section 506(a) of title 17, United States Code, is
amended to read as follows:
• (a) Criminal Infringement(1) IN GENERAL- Any person who willfully infringes a copyright shall be
punished as provided under section 2319 of title 18, if the infringement
was committed-(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any
180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted
works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by
making it available on a computer network accessible to members of the
public, if such person knew or should have known that the work was intended
for commercial distribution.
(2) EVIDENCE- For purposes of this subsection, evidence of reproduction
or distribution of a copyrighted work, by itself, shall not be sufficient to
establish willful infringement of a copyright.
92
Criminal Infringement of a Work Being
Prepared for Commercial Distribution.
• (3) DEFINITION- In this subsection, the term `work being
prepared for commercial distribution' means-(A) a computer program, a musical work, a motion picture or other
audiovisual work, or a sound recording, if, at the time of
unauthorized distribution-(i) the copyright owner has a reasonable expectation of commercial
distribution; and
(ii) the copies or phonorecords of the work have not been
commercially distributed; or
(B) a motion picture, if, at the time of unauthorized distribution, the
motion picture-(i) has been made available for viewing in a motion picture exhibition
facility; and
(ii) has not been made available in copies for sale to the general public
in the United States in a format intended to permit viewing outside a
motion picture exhibition facility.'
93
Criminal Infringement of a Work Being
Prepared for Commercial Distribution.
• (d) Any person who commits an offense under section
506(a)(1)(C) of title 17-• (1) shall be imprisoned not more than 3 years, fined under
this title, or both;
• (2) shall be imprisoned not more than 5 years, fined under
this title, or both, if the offense was committed for purposes of
commercial advantage or private financial gain;
• (3) shall be imprisoned not more than 6 years, fined under
this title, or both, if the offense is a second or subsequent
offense; and
• (4) shall be imprisoned not more than 10 years, fined under
this title, or both, if the offense is a second or subsequent
offense under paragraph (2).
94
Civil Remedies for Infringement of A Work
Being Prepared for Commercial Distribution
(a) Preregistration- Section 408 of title 17, United States Code, is amended by adding at the
end the following:
(f) Preregistration of Works Being Prepared for Commercial Distribution(1) RULEMAKING- Not later than 180 days after the date of enactment of this
subsection, the Register of Copyrights shall issue regulations to establish
procedures for preregistration of a work that is being prepared for commercial
distribution and has not been published.
(2) CLASS OF WORKS- The regulations established under paragraph (1) shall
permit preregistration for any work that is in a class of works that the Register
determines has had a history of infringement prior to authorized commercial
distribution.
(3) APPLICATION FOR REGISTRATION- Not later than 3 months after the first
publication of a work preregistered under this subsection, the applicant shall
submit to the Copyright Office-(A) an application for registration of the work;
(B) a deposit; and
(C) the applicable fee.
(4) EFFECT OF UNTIMELY APPLICATION- An action under this chapter for
infringement of a work preregistered under this subsection, in a case in which
the infringement commenced no later than 2 months after the first publication
of the work, shall be dismissed if the items described in paragraph (3) are not
submitted to the Copyright Office in proper form within the earlier of-(A) 3 months after the first publication of the work; or
(B) 1 month after the copyright owner has learned of the infringement.
95
Civil Remedies for Infringement of A Work
Being Prepared for Commercial Distribution
• Exclusion- Section 412 of title 17, United
States Code, is amended by inserting after
`section 106A(a)' the following: `, an action
for infringement of the copyright of a work
that has been preregistered under section
408(f) before the commencement of the
infringement and that has an effective date
of registration not later than the earlier of 3
months after the first publication of the work
or 1 month after the copyright owner has
learned of the infringement,
96
Family Movie Act of 2005
• Title - Exemption from Infringement for
Skipping Audio and Video Content in
Motion Pictures
97
Family Movie Act of 2005
• `(C) The requirement under subparagraph (B) to
provide notice shall apply only with respect to
technology manufactured after the end of the 180day period beginning on the date of the enactment
of the Family Movie Act of 2005.
• `(D) Any failure by a manufacturer, licensee, or
licensor of technology to qualify for the exemption
under subparagraphs (A) and (B) shall not be
construed to create an inference that any such
party that engages in conduct described in
paragraph (11) of section 110 of title 17, United
States Code, is liable for trademark infringement by
reason of such conduct.'.
98
Cybercrime.gov
• Computer Crime & Intellectual
Property Section of the United
States Department of Justice (DOJ)
99
Program
Completed
All course materials - Copyright 2000-14 Randy L. Canis, Esq.
100
Criminal Trade Secret Violation
18 U.S.C. §§ 1831-1839
§1831
• (a)When a D intending or knowing that the offense will benefit any foreign
government, foreign instrumentality, or foreign agent, knowingly
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by
fraud, artifice, or deception obtains a trade secret;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads,
uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen
or appropriated, obtained, or converted without authorization;
(4) attempts to commit any offense described in any of paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit any offense described in any
of paragraphs (1) through (3), and one or more of such persons do any act to effect
the object of the conspiracy,
•
•
shall, except as provided in subsection (b), be fined not more than $500,000
or imprisoned not more than 15 years, or both.
(b) Organizations.— Any organization that commits any offense described
in subsection (a) shall be fined not more than $10,000,000.
101
Criminal Trade Secret Violation
§1832
•
(a) Whoever, with intent to convert a trade secret, that is related to or included in a
product that is produced for or placed in interstate or foreign commerce, to the economic
benefit of anyone other than the owner thereof, and intending or knowing that the
offense will, injure any owner of that trade secret, knowingly—
•
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by
fraud, artifice, or deception obtains such information;
•
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads,
uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys such information;
•
(3) receives, buys, or possesses such information, knowing the same to have been
stolen or appropriated, obtained, or converted without authorization;
•
(4) attempts to commit any offense described in paragraphs (1) through (3); or
•
(5) conspires with one or more other persons to commit any offense described in
paragraphs (1) through (3), and one or more of such persons do any act to effect the
object of the conspiracy,
•
shall, except as provided in subsection (b), be fined under this title or imprisoned not
more than 10 years, or both.
•
(b) Any organization that commits any offense described in subsection (a) shall be fined
not more than $5,000,000.
102
Criminal Trade Secret Violation
§ 1839. Definitions
•
As used in this chapter—
•
(1) the term “foreign instrumentality” means any agency, bureau, ministry, component,
institution, association, or any legal, commercial, or business organization, corporation,
firm, or entity that is substantially owned, controlled, sponsored, commanded, managed,
or dominated by a foreign government;
•
(2) the term “foreign agent” means any officer, employee, proxy, servant, delegate, or
representative of a foreign government;
•
(3) the term “trade secret” means all forms and types of financial, business, scientific,
technical, economic, or engineering information, including patterns, plans, compilations,
program devices, formulas, designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible or intangible, and whether or how
stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing if—
•
(A) the owner thereof has taken reasonable measures to keep such information secret;
and (B) the information derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable through proper means
by, the public; and
•
(4) the term “owner”, with respect to a trade secret, means the person or entity in whom
or in which rightful legal or equitable title to, or license in, the trade secret is reposed.
103
18 USCS § 1030
•
§ 1030. Fraud and related activity in connection with computers
(a) Whoever-(1) having knowingly accessed a computer without authorization or exceeding
authorized access, and by means of such conduct having obtained information
that has been determined by the United States Government pursuant to an
Executive order or statute to require protection against unauthorized disclosure
for reasons of national defense or foreign relations, or any restricted data, as
defined in paragraph y.[(y)] of section 11 of the Atomic Energy Act of 1954 [42
USCS § 2014(y)], with reason to believe that such information so obtained could
be used to the injury of the United States, or to the advantage of any foreign
nation willfully communicates, delivers, transmits, or causes to be
communicated, delivered, or transmitted, or attempts to communicate, deliver,
transmit or cause to be communicated, delivered, or transmitted the same to
any person not entitled to receive it, or willfully retains the same and fails to
deliver it to the officer or employee of the United States entitled to receive it;
(2) intentionally accesses a computer without authorization or exceeds
authorized access, and thereby obtains-(A) information contained in a financial record of a financial institution, or of a
card issuer as defined in section 1602(n) of title 15, or contained in a file of a
consumer reporting agency on a consumer, as such terms are defined in the
Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer if the conduct involved an
interstate or foreign communication;
104
18 USCS § 1030
•
(3) intentionally, without authorization to access any
nonpublic computer of a department or agency of the United
States, accesses such a computer of that department or
agency that is exclusively for the use of the Government of
the United States or, in the case of a computer not
exclusively for such use, is used by or for the Government of
the United States and such conduct affects that use by or for
the Government of the United States;
(4) knowingly and with intent to defraud, accesses a
protected computer without authorization, or exceeds
authorized access, and by means of such conduct furthers
the intended fraud and obtains anything of value, unless the
object of the fraud and the thing obtained consists only of the
use of the computer and the value of such use is not more
than $ 5,000 in any 1-year period;
105
•
18 USCS § 1030
(5) (A) (i) knowingly causes the transmission of a program, information, code, or
command, and as a result of such conduct, intentionally causes damage without
authorization, to a protected computer;
(ii) intentionally accesses a protected computer without authorization, and as a result
of such conduct, recklessly causes damage; or
(iii) intentionally accesses a protected computer without authorization, and as a result
of such conduct, causes damage; and
(B) by conduct described in clause (i), (ii), or (iii) of subparagraph (A), caused (or, in the
case of an attempted offense, would, if completed, have caused)-(i) loss to 1 or more persons during any 1-year period (and, for purposes of an
investigation, prosecution, or other proceeding brought by the United States only, loss
resulting from a related course of conduct affecting 1 or more other protected computers)
aggregating at least $ 5,000 in value;
(ii) the modification or impairment, or potential modification or impairment, of the
medical examination, diagnosis, treatment, or care of 1 or more individuals;
(iii) physical injury to any person;
(iv) a threat to public health or safety; or
(v) damage affecting a computer system used by or for a government entity in
furtherance of the administration of justice, national defense, or national security;
(6) knowingly and with intent to defraud traffics (as defined in section 1029) in any
password or similar information through which a computer may be accessed without
authorization, if-(A) such trafficking affects interstate or foreign commerce; or
(B) such computer is used by or for the Government of the United States;
(7) with intent to extort from any person any money or other thing of value, transmits in
interstate or foreign commerce any communication containing any threat to cause damage
to a protected computer;
shall be punished as provided in subsection (c) of this section.
106
18 USCS § 1030
•
(b) Whoever attempts to commit an offense under subsection (a) of this section shall be
punished as provided in subsection (c) of this section.
(c) The punishment for an offense under subsection (a) or (b) of this section is-(1) (A) a fine under this title or imprisonment for not more than ten years, or both, in the
case of an offense under subsection (a)(1) of this section which does not occur after a
conviction for another offense under this section, or an attempt to commit an offense
punishable under this subparagraph; and
(B) a fine under this title or imprisonment for not more than twenty years, or both, in the
case of an offense under subsection (a)(1) of this section which occurs after a conviction for
another offense under this section; or an attempt to commit an offense punishable under this
subparagraph;
(2) (A) except as provided in subparagraph (B), a fine under this title or imprisonment for
not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3),
(a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another
offense under this section, or an attempt to commit an offense punishable under this
subparagraph;
(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case
of an offense under subsection (a)(2), or an attempt to commit an offense punishable under
this subparagraph, if-(i) the offense was committed for purposes of commercial advantage or private
financial gain;
(ii) the offense was committed in furtherance of any criminal or tortious act in violation
of the Constitution or laws of the United States or of any State; or
(iii) the value of the information obtained exceeds $ 5,000; and
(C) a fine under this title or imprisonment for not more than ten years, or both, in the
case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs after
a conviction for another offense under this section, or an attempt to commit an offense
punishable under this subparagraph;
107
18 USCS § 1030
•
(3) (A) a fine under this title or imprisonment for not more than five years, or both, in
the case of an offense under subsection (a)(4) or (a)(7) of this section which does not
occur after a conviction for another offense under this section, or an attempt to commit
an offense punishable under this subparagraph; and
(B) a fine under this title or imprisonment for not more than ten years, or both, in the
case of an offense under subsection (a)(4), (a)(5)(A)(iii), or (a)(7) of this section which
occurs after a conviction for another offense under this section, or an attempt to commit
an offense punishable under this section;
(4) (A) except as provided in paragraph (5), a fine under this title, imprisonment for not
more than 10 years, or both, in the case of an offense under subsection (a)(5)(A)(i), or
an attempt to commit an offense punishable under that subsection;
(B) a fine under this title, imprisonment for not more than 5 years, or both, in the
case of an offense under subsection (a)(5)(A)(ii), or an attempt to commit an offense
punishable under that subsection;
(C) except as provided in paragraph (5), a fine under this title, imprisonment for not
more than 20 years, or both, in the case of an offense under subsection (a)(5)(A)(i) or
(a)(5)(A)(ii), or an attempt to commit an offense punishable under either subsection, that
occurs after a conviction for another offense under this section; and
(5) (A) if the offender knowingly or recklessly causes or attempts to cause serious
bodily injury from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or
imprisonment for not more than 20 years, or both; and
(B) if the offender knowingly or recklessly causes or attempts to cause death from
conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for
any term of years or for life, or both.
108
18 USCS § 1030
• (d)
(1) The United States Secret Service shall, in addition to
any other agency having such authority, have the authority to
investigate offenses under this section.
(2) The Federal Bureau of Investigation shall have primary
authority to investigate offenses under subsection (a)(1) for
any cases involving espionage, foreign counterintelligence,
information protected against unauthorized disclosure for
reasons of national defense or foreign relations, or Restricted
Data (as that term is defined in section 11y of the Atomic
Energy Act of 1954 (42 U.S.C. 2014(y)), except for offenses
affecting the duties of the United States Secret Service
pursuant to section 3056(a) of this title.
(3) Such authority shall be exercised in accordance with an
agreement which shall be entered into by the Secretary of the
Treasury and the Attorney General.
109
18 USCS § 1030
•
(e) As used in this section-(1) the term "computer" means an electronic, magnetic, optical,
electrochemical, or other high speed data processing device
performing logical, arithmetic, or storage functions, and includes any
data storage facility or communications facility directly related to or
operating in conjunction with such device, but such term does not
include an automated typewriter or typesetter, a portable hand held
calculator, or other similar device;
(2) the term "protected computer" means a computer-(A) exclusively for the use of a financial institution or the United
States Government, or, in the case of a computer not exclusively for
such use, used by or for a financial institution or the United States
Government and the conduct constituting the offense affects that
use by or for the financial institution or the Government; or
(B) which is used in interstate or foreign commerce or
communication, including a computer located outside the United
States that is used in a manner that affects interstate or foreign
commerce or communication of the United States;
(3) the term "State" includes the District of Columbia, the
Commonwealth of Puerto Rico, and any other commonwealth,
possession or territory of the United States;
110
18 USCS § 1030
•
(4) the term "financial institution" means-(A) an institution, with deposits insured by the Federal Deposit Insurance
Corporation;
(B) the Federal Reserve or a member of the Federal Reserve including any
Federal Reserve Bank;
(C) a credit union with accounts insured by the National Credit Union
Administration;
(D) a member of the Federal home loan bank system and any home loan
bank;
(E) any institution of the Farm Credit System under the Farm Credit Act of
1971;
(F) a broker-dealer registered with the Securities and Exchange Commission
pursuant to section 15 of the Securities Exchange Act of 1934 [15 USCS § 78o];
(G) the Securities Investor Protection Corporation;
(H) a branch or agency of a foreign bank (as such terms are defined in
paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978
[12 USCS § 3101(1) and (3)]); and
(I) an organization operating under section 25 or section 25(a) of the Federal
Reserve Act;
(5) the term "financial record" means information derived from any record held
by a financial institution pertaining to a customer's relationship with the financial
institution;
(6) the term "exceeds authorized access" means to access a computer with
authorization and to use such access to obtain or alter information in the
computer that the accesser is not entitled so to obtain or alter;
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18 USCS § 1030
•
(7) the term "department of the United States" means the legislative or
judicial branch of the Government or one of the executive department
enumerated in section 101 of title 5;
(8) the term "damage" means any impairment to the integrity or availability
of data, a program, a system, or information;
(9) the term "government entity" includes the Government of the United
States, any State or political subdivision of the United States, any foreign
country, and any state, province, municipality, or other political subdivision of
a foreign country;
(10) the term "conviction" shall include a conviction under the law of any
State for a crime punishable by imprisonment for more than 1 year, an
element of which is unauthorized access, or exceeding authorized access, to
a computer;
(11) the term "loss" means any reasonable cost to any victim, including the
cost of responding to an offense, conducting a damage assessment, and
restoring the data, program, system, or information to its condition prior to
the offense, and any revenue lost, cost incurred, or other consequential
damages incurred because of interruption of service; and
(12) the term "person" means any individual, firm, corporation, educational
institution, financial institution, governmental entity, or legal or other entity.
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18 USCS § 1030
•
(f) This section does not prohibit any lawfully authorized investigative,
protective, or intelligence activity of a law enforcement agency of the United
States, a State, or a political subdivision of a State, or of an intelligence
agency of the United States.
(g) Any person who suffers damage or loss by reason of a violation of this
section may maintain a civil action against the violator to obtain
compensatory damages and injunctive relief or other equitable relief. A civil
action for a violation of this section may be brought only if the conduct
involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of
subsection (a)(5)(B). Damages for a violation involving only conduct
described in subsection (a)(5)(B)(i) are limited to economic damages. No
action may be brought under this subsection unless such action is begun
within 2 years of the date of the act complained of or the date of the
discovery of the damage. No action may be brought under this subsection for
the negligent design or manufacture of computer hardware, computer
software, or firmware.
(h) The Attorney General and the Secretary of the Treasury shall report to
the Congress annually, during the first 3 years following the date of the
enactment of this subsection [enacted Sept. 13, 1994], concerning
investigations and prosecutions under subsection (a)(5).
113
Family Movie Act of 2005
(a) In General- Section 110 of title 17, United States Code, is amended-(1) in paragraph (9), by striking `and' after the semicolon at the end;
(2) in paragraph (10), by striking the period at the end and inserting `; and';
(3) by inserting after paragraph (10) the following:
`(11) the making imperceptible, by or at the direction of a member of a private household, of
limited portions of audio or video content of a motion picture, during a performance in or
transmitted to that household for private home viewing, from an authorized copy of the
motion picture, or the creation or provision of a computer program or other technology
that enables such making imperceptible and that is designed and marketed to be used,
at the direction of a member of a private household, for such making imperceptible, if no
fixed copy of the altered version of the motion picture is created by such computer
program or other technology.'; and
(4) by adding at the end the following:
`For purposes of paragraph (11), the term `making imperceptible' does not include the
addition of audio or video content that is performed or displayed over or in place of
existing content in a motion picture.
`Nothing in paragraph (11) shall be construed to imply further rights under section 106 of this
title, or to have any effect on defenses or limitations on rights granted under any other
section of this title or under any other paragraph of this section.'.
114
Family Movie Act of 2005
(b) Exemption From Trademark Infringement- Section 32 of the Trademark Act
of 1946 (15 U.S.C. 1114) is amended by adding at the end the following:
• `(3)(A) Any person who engages in the conduct described in paragraph (11)
of section 110 of title 17, United States Code, and who complies with the
requirements set forth in that paragraph is not liable on account of such
conduct for a violation of any right under this Act. This subparagraph does
not preclude liability, nor shall it be construed to restrict the defenses or
limitations on rights granted under this Act, of a person for conduct not
described in paragraph (11) of section 110 of title 17, United States Code,
even if that person also engages in conduct described in paragraph (11) of
section 110 of such title.
• `(B) A manufacturer, licensee, or licensor of technology that enables the
making of limited portions of audio or video content of a motion picture
imperceptible as described in subparagraph (A) is not liable on account of
such manufacture or license for a violation of any right under this Act, if such
manufacturer, licensee, or licensor ensures that the technology provides a
clear and conspicuous notice at the beginning of each performance that the
performance of the motion picture is altered from the performance intended
by the director or copyright holder of the motion picture. The limitations on
liability in subparagraph (A) and this subparagraph shall not apply to a
manufacturer, licensee, or licensor of technology that fails to comply with this
paragraph.
115
Missouri Law
Missouri Revised Statutes
• Chapter 566 - Sexual Offenses
• Chapter 567 – Prostitution
• Chapter 568 – Offenses Against the
Family
• Chapter 573 – Pornography and
Related Offenses
116
Missouri Offenses
Definitions
• Chapter 566 and chapter 568 definitions. 566.010. As used in this
chapter and chapter 568, RSMo, the following terms mean:
• (1) "Deviate sexual intercourse", any act involving the genitals of
one person and the hand, mouth, tongue, or anus of another person
or a sexual act involving the penetration, however slight, of the male
or female sex organ or the anus by a finger, instrument or object
done for the purpose of arousing or gratifying the sexual desire of
any person or for the purpose of terrorizing the victim;
• (2) "Sexual conduct", sexual intercourse, deviate sexual intercourse
or sexual contact;
• (3) "Sexual contact", any touching of another person with the
genitals or any touching of the genitals or anus of another person, or
the breast of a female person, or such touching through the clothing,
for the purpose of arousing or gratifying sexual desire of any person;
• (4) "Sexual intercourse", any penetration, however slight, of the
female sex organ by the male sex organ, whether or not an emission
results.
117
Missouri Offenses
Sexual misconduct involving a child, penalty--applicability of section-affirmative defense not allowed, when.
566.083.
1. A person commits the crime of sexual misconduct involving a child if the person:
(1) Knowingly exposes his or her genitals to a child less than fifteen years of age under
circumstances in which he or she knows that his or her conduct is likely to cause
affront or alarm to the child;
(2) Knowingly exposes his or her genitals to a child less than fifteen years of age for
the purpose of arousing or gratifying the sexual desire of any person, including the
child; or
(3) Knowingly coerces or induces a child less than fifteen years of age to expose the
child's genitals for the purpose of arousing or gratifying the sexual desire of any
person, including the child.
2. The provisions of this section shall apply regardless of whether the person violates the
section in person or via the Internet or other electronic means.
3. It is not an affirmative defense to prosecution for a violation of this section that the other
person was a peace officer masquerading as a minor.
4. Sexual misconduct involving a child or attempted sexual misconduct involving a child is a
class D felony unless the actor has previously pleaded guilty to or been found guilty of
an offense pursuant to this chapter or the actor has previously pleaded guilty to or has
been convicted of an offense against the laws of another state or jurisdiction which
would constitute an offense under this chapter, in which case it is a class C felony.
118
Missouri Offenses
Enticement of a child, penalties. 566.151.
1. A person at least twenty-one years of age or older commits
the crime of enticement of a child if that person persuades,
solicits, coaxes, entices, or lures whether by words, actions or
through communication via the Internet or any electronic
communication, any person who is less than fifteen years of
age for the purpose of engaging in sexual conduct.
2. It is not an affirmative defense to a prosecution for a violation
of this section that the other person was a peace officer
masquerading as a minor.
3. Enticement of a child or an attempt to commit enticement of a
child is a felony for which the authorized term of
imprisonment shall be not less than five years and not more
than thirty years. No person convicted under this section shall
be eligible for parole, probation, conditional release, or
suspended imposition or execution of sentence for a period of
five calendar years.
119
Missouri Offenses
Crime of promoting on-line sexual solicitation, violation, penalty.
566.103. 1. A person or entity commits the offense of promoting on-line sexual solicitation if such person or
entity knowingly permits a web-based classified service owned or operated by such person or entity to
be used by individuals to post advertisements promoting prostitution, enticing a child to engage in
sexual conduct, or promoting sexual trafficking of a child after receiving notice under this section.
2. As used in this section, the term "web-based classified service" means a person or entity in whose name
a specific URL or Internet domain name is registered which has advertisements for goods and services
or personal advertisements.
3. An advertisement may be deemed to promote prostitution, entice a child to engage in sexual conduct, or
promote sexual trafficking of a child, if the content of such advertisement would be interpreted by a
reasonable person as offering to exchange sexual conduct for goods or services in violation of chapter
567, RSMo, as seeking a child for the purpose of sexual conduct or commercial sex act, or as offering
a child as a participant in sexual conduct or commercial sex act in violation of section 566.151,
566.212, or 566.213.
4. It shall be prima facie evidence that a person or entity acts knowingly if an advertisement is not removed
from the web-based classified service within seventy-two hours of that person or entity being notified
that an advertisement has been posted on that service which is prohibited under this section.
5. Notice under this section may be provided by certified mail or facsimile transmission by the attorney
general or any prosecuting attorney or circuit attorney.
6. A violation of this section shall be a felony, punishable by a fine in the amount of five thousand dollars per
day that the advertisement remains posted on the web-based classified service after seventy-two hours
of when notice has been provided pursuant to this section.
7. Original jurisdiction for prosecution of a violation of this section shall be with the local prosecuting attorney
or circuit attorney.
120
Missouri Offenses
Defenses by Age
566.020.
1. Whenever in this chapter the criminality of conduct depends upon a
victim's being incapacitated, no crime is committed if the actor
reasonably believed that the victim was not incapacitated and
reasonably believed that the victim consented to the act. The
defendant shall have the burden of injecting the issue of belief as to
capacity and consent.
2. Whenever in this chapter the criminality of conduct depends upon a
child being thirteen years of age or younger, it is no defense that the
defendant believed the child to be older.
3. Whenever in this chapter the criminality of conduct depends upon a
child being under seventeen years of age, it is an affirmative
defense that the defendant reasonably believed that the child was
seventeen years of age or older.
4. Consent is not an affirmative defense to any offense under chapter
566 if the alleged victim is less than twelve years of age.
121
Missouri Offenses
• Pornography and Related Offenses
• http://www.moga.mo.gov/STATUTES/
C573.HTM
122
Federal Law
• Sec. 2251. - Sexual exploitation of children
• (a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, or who has a
minor assist any other person to engage in, or who transports
any minor in interstate or foreign commerce, or in any
Territory or Possession of the United States, with the intent
that such minor engage in, any sexually explicit conduct for
the purpose of producing any visual depiction of such
conduct, shall be punished as provided under subsection (d),
if such person knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce
or mailed, if that visual depiction was produced using
materials that have been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been
transported in interstate or foreign commerce or mailed.
• …
123
Federal Law
(c) (1) Any person who, in a circumstance described in paragraph (2), knowingly
makes, prints, or publishes, or causes to be made, printed, or published, any
notice or advertisement seeking or offering (A) to receive, exchange, buy, produce, display, distribute, or reproduce,
any visual depiction, if the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct and such visual
depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or with any minor
for the purpose of producing a visual depiction of such conduct; shall be
punished as provided under subsection (d).
(2) The circumstance referred to in paragraph (1) is that (A) such person knows or has reason to know that such notice or
advertisement will be transported in interstate or foreign commerce by
any means including by computer or mailed; or
(B) such notice or advertisement is transported in interstate or foreign
commerce by any means including by computer or mailed.
• …
124
Federal Law
Sec. 2252. - Certain activities relating to material involving
the sexual exploitation of minors
(a) Any person who (1) knowingly transports or ships in interstate or foreign commerce
by any means including by computer or mails, any visual
depiction, if (A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction that has
been mailed, or has been shipped or transported in interstate or
foreign commerce, or which contains materials which have been
mailed or so shipped or transported, by any means including by
computer, or knowingly reproduces any visual depiction for
distribution in interstate or foreign commerce or through the
mails, if (A) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
125
Federal Law
(3) either (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the Government of the United
States, or in the Indian country as defined in section 1151 of this title, knowingly sells or
possesses with intent to sell any visual depiction; or
(B) knowingly sells or possesses with intent to sell any visual depiction that has been mailed, or has
been shipped or transported in interstate or foreign commerce, or which was produced using
materials which have been mailed or so shipped or transported, by any means, including by
computer, if (i) the producing of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and
(ii) such visual depiction is of such conduct; or
(4) either (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building
owned by, leased to, or otherwise used by or under the control of the Government of the United
States, or in the Indian country as defined in section 1151 of this title, knowingly possesses 1 or
more books, magazines, periodicals, films, video tapes, or other matter which contain any visual
depiction; or
(B) knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which was produced using materials which have been mailed
or so shipped or transported, by any means including by computer, if (i) the producing of such visual depiction involves the use of a minor engaging in sexually
explicit conduct; and
(ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of
this section.
126
Federal Law
(b)
(1) …
(c) Affirmative Defense. It shall be an affirmative defense to a charge of violating
paragraph (4) of subsection (a) that the defendant
(1) possessed less than three matters containing any visual
depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement
agency, to access any visual depiction or copy thereof (A) took reasonable steps to destroy each such visual
depiction; or
(B) reported the matter to a law enforcement agency
and afforded that agency access to each such visual
depiction
127
Federal Law
Sec. 2257. - Record keeping requirements
(a) Whoever produces any book, magazine, periodical, film, videotape, or other matter which
(1) contains one or more visual depictions made after November 1, 1990 of actual
sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in
interstate or foreign commerce, or is shipped or transported or is intended for
shipment or transportation in interstate or foreign commerce;
shall create and maintain individually identifiable records pertaining to every performer
portrayed in such a visual depiction.
(b) Any person to whom subsection (a) applies shall, with respect to every performer
portrayed in a visual depiction of actual sexually explicit conduct (1) ascertain, by examination of an identification document containing such
information, the performer's name and date of birth, and require the performer to
provide such other indicia of his or her identity as may be prescribed by
regulations;
(2) ascertain any name, other than the performer's present and correct name, ever
used by the performer including maiden name, alias, nickname, stage, or
professional name; and
(3) record in the records required by subsection (a) the information required by
paragraphs (1) and (2) of this subsection and such other identifying information as
may be prescribed by regulation.
128
Federal Law
(c) Any person to whom subsection (a) applies shall maintain the records required by this
section at his business premises, or at such other place as the Attorney General may by
regulation prescribe and shall make such records available to the Attorney General for
inspection at all reasonable times.
(d)
(1) No information or evidence obtained from records required to be created or maintained by this
section shall, except as provided in this section, directly or indirectly, be used as evidence
against any person with respect to any violation of law.
(2) Paragraph (1) of this subsection shall not preclude the use of such information or evidence in a
prosecution or other action for a violation of this section or for a violation of any applicable
provision of law with respect to the furnishing of false information.
(e)
(1) Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter
described in paragraph (1) of subsection (a) of this section, in such manner and in such form as
the Attorney General shall by regulations prescribe, a statement describing where the records
required by this section with respect to all performers depicted in that copy of the matter may be
located.
(2) If the person to whom subsection (a) of this section applies is an organization the statement
required by this subsection shall include the name, title, and business address of the individual
employed by such organization responsible for maintaining the records required by this section.
129
Federal Law
(f) It shall be unlawful (1) for any person to whom subsection (a) applies to fail to create or maintain the
records as required by subsections (a) and (c) or by any regulation promulgated
under this section;
(2) for any person to whom subsection (a) applies knowingly to make any false entry in
or knowingly to fail to make an appropriate entry in, any record required by
subsection (b) of this section or any regulation promulgated under this section;
(3) for any person to whom subsection (a) applies knowingly to fail to comply with the
provisions of subsection (e) or any regulation promulgated pursuant to that
subsection; and
(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer,
any book, magazine, periodical, film, video, or other matter, produce in whole or in
part with materials which have been mailed or shipped in interstate or foreign
commerce or which is intended for shipment in interstate or foreign commerce,
which (A) contains one or more visual depictions made after the effective date of this
subsection of actual sexually explicit conduct; and
(B) is produced in whole or in part with materials which have been mailed or
shipped in interstate or foreign commerce, or is shipped or transported or is
intended for shipment or transportation in interstate or foreign commerce;
which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1),
a statement describing where the records required by this section may be located, but
such person shall have no duty to determine the accuracy of the contents of the
statement or the records required to be kept.
130
Federal Law
(g) The Attorney General shall issue appropriate regulations to carry out this
section.
(h) As used in this section (1) the term ''actual sexually explicit conduct'' means actual but not simulated conduct
as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of
this title;
(2) ''identification document'' has the meaning given that term in section 1028(d) of this
title;
(3) the term ''produces'' means to produce, manufacture, or publish any book,
magazine, periodical, film, video tape or other similar matter and includes the
duplication, reproduction, or reissuing of any such matter, but does not include
mere distribution or any other activity which does not involve hiring, contracting for
managing, or otherwise arranging for the participation of the performers depicted;
and
(4) the term ''performer'' includes any person portrayed in a visual depiction engaging
in, or assisting another person to engage in, actual sexually explicit conduct.
(i) Whoever violates this section shall be imprisoned for not more than 2 years,
and fined in accordance with the provisions of this title, or both. Whoever
violates this section after having been convicted of a violation punishable
under this section shall be imprisoned for any period of years not more than
5 years but not less than 2 years, and fined in accordance with the provisions
of this title, or both
131
Federal Law
Sec. 2421. - Transportation generally
•
Whoever knowingly transports any individual in interstate or foreign commerce, or in any
Territory or Possession of the United States, with intent that such individual engage in
prostitution, or in any sexual activity for which any person can be charged with a criminal
offense, or attempts to do so, shall be fined under this title or imprisoned not more than
10 years, or both
Sec. 2422. - Coercion and enticement
(a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in
interstate or foreign commerce, or in any Territory or Possession of the United States, to
engage in prostitution, or in any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned
not more than 10 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or
within the special maritime and territorial jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any individual who has not attained the age of
18 years, to engage in prostitution or any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both
Sec. 2427. - Inclusion of offenses relating to child pornography in definition of sexual
activity for which any person can be charged with a criminal offense
•
In this chapter, the term ''sexual activity for which any person can be charged with a
criminal offense'' includes the production of child pornography, as defined in section
2256(8)
132