1. U.S criminal law’s reinforcement of technological measures protecting property: where the DMCA fits in Elliot N. Turrini Assistant U.S. Attorney Computer & Telecommunication Coordinator District of New Jersey June 14, 2001 Elliot N. Turrini Assistant U.S. Attorney Computer & Telecommunication Coordinator District of New Jersey June 14, 2001

2. IntroductionIntroduction l Placing the DMCA in the in larger picture of criminal law l General criminal law approach to property crimes: –Criminalize substantial interference with property –Do not criminalize interference or circumvention of any specific security measure –Sometimes criminalize the distributing of items that facilitate direct interference with the property l Placing the DMCA in the in larger picture of criminal law l General criminal law approach to property crimes: –Criminalize substantial interference with property –Do not criminalize interference or circumvention of any specific security measure –Sometimes criminalize the distributing of items that facilitate direct interference with the property

3. DMCA’s two criminal components l Anti-circumvention: prohibits circumvention of technological measures that controls access to copyrighted work l Anti-trafficking: prohibits trafficking in technology primarily designed to: –Circumvent technological measure that controls access to a copyrighted work; or –Circumvent protection of a technological measure that protects the rights of the copyright owner l Anti-circumvention: prohibits circumvention of technological measures that controls access to copyrighted work l Anti-trafficking: prohibits trafficking in technology primarily designed to: –Circumvent technological measure that controls access to a copyrighted work; or –Circumvent protection of a technological measure that protects the rights of the copyright owner

4. DMCA penalties l Basic requirement: violation must be made willfully and for the purpose of commercial advantage or private financial gain l Penalties –Not more than $500,000 fine –Not more than 5 years’ imprisonment l Basic requirement: violation must be made willfully and for the purpose of commercial advantage or private financial gain l Penalties –Not more than $500,000 fine –Not more than 5 years’ imprisonment

5. General criminal law approach to property crimes l Prohibit direct interference with the tangible property –Theft & fraud laws –Destruction or damage to property laws –Bottom line: prohibit monetary harm l Intangible property –Presented some problems l Theft laws generally involved the permanent taking of property; l Criminal trespass generally involved physical entry in or on land, structures, vehicles –General approach: prohibit interference with a set of legally cognizable rights –Example: criminal copyright infringement l Prohibit direct interference with the tangible property –Theft & fraud laws –Destruction or damage to property laws –Bottom line: prohibit monetary harm l Intangible property –Presented some problems l Theft laws generally involved the permanent taking of property; l Criminal trespass generally involved physical entry in or on land, structures, vehicles –General approach: prohibit interference with a set of legally cognizable rights –Example: criminal copyright infringement

6. Technical protections: security measures l Security measures have historically played an important role in protecting property –Door locks –Dogs –Bank vaults –Alarms –Surveillance cameras l Role in Information age: even more important –Improvements in information access & ease of information transfer –Reduction in physical limitations on crime l Security measures have historically played an important role in protecting property –Door locks –Dogs –Bank vaults –Alarms –Surveillance cameras l Role in Information age: even more important –Improvements in information access & ease of information transfer –Reduction in physical limitations on crime

7. Criminal law & security measures l Tangible measures: Vaults, locks, dogs, etc. –No laws prohibiting interference with any particular tangible security measure –Example: bank robber blows up the safe & takes money l Direct laws: theft & bank robbery l Indirect laws: damage to property & trespass l Intangible measures: av software, firewalls, IDSs –No laws prohibiting interference with any particular intangible security measure –Example: hacker defeats firewall & steals credit cards l Indirect laws are not linked to any specific property or security measure – except DMCA l Circumvention damages property l Tangible measures: Vaults, locks, dogs, etc. –No laws prohibiting interference with any particular tangible security measure –Example: bank robber blows up the safe & takes money l Direct laws: theft & bank robbery l Indirect laws: damage to property & trespass l Intangible measures: av software, firewalls, IDSs –No laws prohibiting interference with any particular intangible security measure –Example: hacker defeats firewall & steals credit cards l Indirect laws are not linked to any specific property or security measure – except DMCA l Circumvention damages property

8. Distributing items that facilitate crime l General approach to facilitating crime: aiding & abetting liability l Specific examples of laws criminalizing the distribution of items facilitating crimes –Cable piracy –Access device fraud –Spy devices l General approach to facilitating crime: aiding & abetting liability l Specific examples of laws criminalizing the distribution of items facilitating crimes –Cable piracy –Access device fraud –Spy devices

9. Aiding & abetting l Elements: 18 USC Section 2 –A crime is committed –Defendant willfully participated: taking some act to make the criminal venture succeed l Defenses –Mere presence is not enough –Mere acquiescence is not enough l Punishment: same as principal l Elements: 18 USC Section 2 –A crime is committed –Defendant willfully participated: taking some act to make the criminal venture succeed l Defenses –Mere presence is not enough –Mere acquiescence is not enough l Punishment: same as principal

10. Cable piracy: 47 USC 553 & 605 l Main purpose: prevent unauthorized use of cable services l Statutory technique –Section 553: prohibits “assisting in intercepting or receiving[;]” which includes distribution of descramblers –Section 605: prohibits “assist[ing] in receiving. l Distributing descramblers –Similar to aiding and abetting –Facilitates the unauthorized use –Not really conspiracy l Main purpose: prevent unauthorized use of cable services l Statutory technique –Section 553: prohibits “assisting in intercepting or receiving[;]” which includes distribution of descramblers –Section 605: prohibits “assist[ing] in receiving. l Distributing descramblers –Similar to aiding and abetting –Facilitates the unauthorized use –Not really conspiracy

11. Cable piracy penalties l Section 553 –Willful violations: fine not more than $1,000 and imprisonment not more than 6 months –Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years l Section 605 –Willful violations: fine not more than $2,000 and imprisonment not more than 6 months –Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years l Section 553 –Willful violations: fine not more than $1,000 and imprisonment not more than 6 months –Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years l Section 605 –Willful violations: fine not more than $2,000 and imprisonment not more than 6 months –Willful and for purpose of commercial advantage and private financial gain: fine not more than $50,000 and imprisonment not more than 2 years

12. Access device offenses l Section 1029(a)(1)& (2): prohibits knowingly and with intent to defraud producing, using or trafficking in counterfeit or unauthorized access devices. l Access device: “any card, plate, code, account, number, electronic serial number” or “other means of account access” that can be used to obtain money goods, services, or any other thing of value, or that can be used to initiate a transfer of funds. l Examples: credit cards, ESNs, bank account #s l Penalty: not more than 10 years imprisonment l Section 1029(a)(1)& (2): prohibits knowingly and with intent to defraud producing, using or trafficking in counterfeit or unauthorized access devices. l Access device: “any card, plate, code, account, number, electronic serial number” or “other means of account access” that can be used to obtain money goods, services, or any other thing of value, or that can be used to initiate a transfer of funds. l Examples: credit cards, ESNs, bank account #s l Penalty: not more than 10 years imprisonment

13. Access device-making offenses l Section 1029(a)(4): prohibits knowingly and with intent to defraud producing, trafficking in, having control or custody of, or possessing “device- making equipment l Device-making equipment: “any equipment, mechanism, or impression designed or primarily used for making an access device or counterfeit access device l Penalties: not more than 15 years imprisonment l Section 1029(a)(4): prohibits knowingly and with intent to defraud producing, trafficking in, having control or custody of, or possessing “device- making equipment l Device-making equipment: “any equipment, mechanism, or impression designed or primarily used for making an access device or counterfeit access device l Penalties: not more than 15 years imprisonment

14. Spy device offenses: 18 USC 2512 l Section 2512 prohibits intentionally: –manufacturing, assembling, possessing, or selling any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications –Placing an advertisement of any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications –Sends through interstate commerce any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications l Penalties: $250,000 fine & five years prison l Section 2512 prohibits intentionally: –manufacturing, assembling, possessing, or selling any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications –Placing an advertisement of any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications –Sends through interstate commerce any device that you know is designed primarily for the purpose of the surreptitious interception of wire, oral, or electronic communications l Penalties: $250,000 fine & five years prison

15. Felony copyright infringement l Elements of 17 USC 506 (a)(2) –Copyright exists –Infringement by reproduction or distribution –Defendant acted willfully –Defendant infringed at least 10 copies of copyrighted works with a retail value of more than $2,500 within a 180-day period l Enhancing element 18 USC 2319: –Done for purposes of commercial advantage or private financial gain l Wilfull: no clear definition; can include knowledge that conduct was illegal l Elements of 17 USC 506 (a)(2) –Copyright exists –Infringement by reproduction or distribution –Defendant acted willfully –Defendant infringed at least 10 copies of copyrighted works with a retail value of more than $2,500 within a 180-day period l Enhancing element 18 USC 2319: –Done for purposes of commercial advantage or private financial gain l Wilfull: no clear definition; can include knowledge that conduct was illegal

16. The End Elliot N. Turrini Assistant U.S. Attorney Computer & Telecommunication Coordinator District of New Jersey (973) 645-2700 Elliot.Turrini.@usdoj.gov Elliot N. Turrini Assistant U.S. Attorney Computer & Telecommunication Coordinator District of New Jersey (973) 645-2700 Elliot.Turrini.@usdoj.gov