Computers and the Law Randy Canis CLASS 13

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 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. 3 d 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. 3 d 376, 382 (7 th 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. 2 d 434, 442 n. 2 (7 th 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. 3 d 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. When. U. com • Defendant When. U – 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. When. U. com • To what behavior of the Defendant has Plaintiff objected? • “When the Save. Now 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. When. U. 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. When. U. 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. When. U. com Save. Now Directory • Court’s analysis focuses on the differences between use of a trademark and a URL: • “… a When. U 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. When. U. com Save. Now Directory • “In contrast to some of its competitors, moreover, When. U does not disclose the proprietary contents of the Save. Now 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. When. U. com Pop-up Advertisements • “The fatal flaw with [concluding that placement of pop-up ads] is that When. U's pop-up ads do not display the 1 -800 trademark. ” • “[T]he appearance of When. U'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. When. U. com • Why does the court compare the activity to product placement at drug stores? 27 27

1 -800 Contacts v. When. U. 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. When. U. com • “We hold that, as a matter of law, When. U 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 When. U'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 When. U, 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. n 16 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) • Direct. Revenue Holdings, Accu. Quote, and a. Quantative (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 Stephie. FL 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 Video. Dom 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 Stephie. FL… 56

U. S. v. Crow • • • “Crow asked permission to call Stephie. FL to verify her identity. When she declined, he gave her a telephone number and hours during which she could call him. Crow asked Stephie. FL her age and she told him she was ‘ 13. ’” “Throughout their contact, which occurred via the Internet and email, Crow continued to provide Stephie. FL with sexually explicit photographs of pre-pubescent and pubescent girls while requesting voice verification. ” “In late September of 1996, Stephie. FL 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 Video. Dom 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: • 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 2319 A the following new section: • Sec. 2319 B. 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', `copyright owner', `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 2319 A 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 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 106 A(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 180 day 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. 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. 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 11 y 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 § 78 o]; (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; 111

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. 112

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), (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/ C 573. 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