[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2168 Reported in Senate (RS)]






                                                       Calendar No. 459
110th CONGRESS
  1st Session
                                S. 2168

  To amend title 18, United States Code, to enable increased federal 
 prosecution of identity theft crimes and to allow for restitution to 
                       victims of identity theft.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 16, 2007

   Mr. Leahy (for himself, Mr. Specter, Mr. Grassley, Mr. Nelson of 
Florida, Mr. Durbin, Mr. Schumer, Mr. Biden, and Mr. Hatch) introduced 
the following bill; which was read twice and referred to the Committee 
                            on the Judiciary

                            November 1, 2007

                 Reported by Mr. Leahy, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
  To amend title 18, United States Code, to enable increased federal 
 prosecution of identity theft crimes and to allow for restitution to 
                       victims of identity theft.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Identity Theft Enforcement and 
Restitution Act of 2007''.

SEC. 2. CRIMINAL RESTITUTION.

    Section 3663(b) of title 18, United States Code, is amended--
            (1) in paragraph (4), by striking ``; and'' and inserting a 
        semicolon;
            (2) in paragraph (5), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(6) in the case of an offense under sections 1028(a)(7) 
        or 1028A(a) of this title, pay an amount equal to the value of 
        the time reasonably spent by the victim in an attempt to 
        remediate the intended or actual harm incurred by the victim 
        from the offense.''.

SEC. 3. PREDICATE OFFENSES FOR AGGRAVATED IDENTITY THEFT AND MISUSE OF 
              IDENTIFYING INFORMATION OF ORGANIZATIONS.

    (a) Identity Theft.--Section 1028 of title 18, United States Code, 
is amended--
            (1) in subsection (a)(7), by inserting ``(including an 
        organization as defined in section 18 of this title)'' after 
        ``person''; and
            (2) in subsection (d)(7), by inserting ``or other person'' 
        after ``specific individual''.
    (b) Aggravated Identity Theft.--Section 1028A of title 18, United 
States Code, is amended--
            (1) in subsection (a)(1), by inserting ``(including an 
        organization as defined in section 18 of this title)'' after 
        ``person''; and
            (2) in subsection (c)--
                    (A) in the matter preceding paragraph (1), by 
                inserting ``, or a conspiracy to commit such a felony 
                violation,'' after ``any offense that is a felony 
                violation'';
                    (B) by redesignating--
                            (i) paragraph (11) as paragraph (14);
                            (ii) paragraphs (8) through (10) as 
                        paragraphs (10) through (12), respectively; and
                            (iii) paragraphs (1) through (7) as 
                        paragraphs (2) through (8), respectively;
                    (C) by inserting prior to paragraph (2), as so 
                redesignated, the following:
            ``(1) section 513 (relating to making, uttering, or 
        possessing counterfeited securities);'';
                    (D) by inserting after paragraph (8), as so 
                redesignated, the following:
            ``(9) section 1708 (relating to mail theft);'';
                    (E) in paragraph (12), as so redesignated, by 
                striking ``; or'' and inserting a semicolon; and
                    (F) by inserting after paragraph (12), as so 
                redesignated, the following:
            ``(13) section 7201, 7206, or 7207 of title 26 (relating to 
        tax fraud); or''.

SEC. 4. ENSURING JURISDICTION OVER THE THEFT OF SENSITIVE IDENTITY 
              INFORMATION.

    Section 1030(a)(2)(C) of title 18, United States Code, is amended 
by striking ``if the conduct involved an interstate or foreign 
communication''.

SEC. 5. MALICIOUS SPYWARE, HACKING AND KEYLOGGERS.

    (a) In General.--Section 1030 of title 18, United States Code, is 
amended--
            (1) in subsection (a)(5)--
                    (A) by striking subparagraph (B); and
                    (B) in subparagraph (A)--
                            (i) by striking ``(A)(i) knowingly'' and 
                        inserting ``(A) knowingly'';
                            (ii) by redesignating clauses (ii) and 
                        (iii) as subparagraphs (B) and (C), 
                        respectively; and
                        <DELETED>    (iii) in subparagraph (C), as so 
                        redesignated, by striking ``; and'' and 
                        inserting a period;</DELETED>
                            (iii) in subparagraph (C), as so 
                        redesignated--
                                    (I) by inserting ``and loss'' after 
                                ``damage''; and
                                    (II) by striking ``; and'' and 
                                inserting a period;
            (2) in subsection (c)--
                    (A) in paragraph (2)(A), by striking 
                ``(a)(5)(A)(iii),'';
                    (B) in paragraph (3)(B), by striking 
                ``(a)(5)(A)(iii),'';
                    (C) by amending paragraph (4) to read as follows:
            ``(4)(A) except as provided in subparagraphs (E) and (F), a 
        fine under this title, imprisonment for not more than 5 years, 
        or both, in the case of--
                    ``(i) an offense under subsection (a)(5)(B), which 
                does not occur after a conviction for another offense 
                under this section, if the offense 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;
                            ``(V) damage affecting a computer used by 
                        or for an entity of the United States 
                        Government in furtherance of the administration 
                        of justice, national defense, or national 
                        security; or
                            ``(VI) damage affecting 10 or more 
                        protected computers during any 1-year period; 
                        or
                    ``(ii) an attempt to commit an offense punishable 
                under this subparagraph;
            ``(B) except as provided in subparagraphs (E) and (F), a 
        fine under this title, imprisonment for not more than 10 years, 
        or both, in the case of--
                    ``(i) an offense under subsection (a)(5)(A), which 
                does not occur after a conviction for another offense 
                under this section, if the offense caused (or, in the 
                case of an attempted offense, would, if completed, have 
                caused) a harm provided in subclauses (I) through (VI) 
                of subparagraph (A)(i); or
                    ``(ii) an attempt to commit an offense punishable 
                under this subparagraph;
            ``(C) except as provided in subparagraphs (E) and (F), a 
        fine under this title, imprisonment for not more than 20 years, 
        or both, in the case of--
                    ``(i) an offense or an attempt to commit an offense 
                under subparagraphs (A) or (B) of subsection (a)(5) 
                that occurs after a conviction for another offense 
                under this section; or
                    ``(ii) an attempt to commit an offense punishable 
                under this subparagraph;
            ``(D) a fine under this title, imprisonment for not more 
        than 10 years, or both, in the case of--
                    ``(i) an offense or an attempt to commit an offense 
                under subsection (a)(5)(C) that occurs after a 
                conviction for another offense under this section; or
                    ``(ii) an attempt to commit an offense punishable 
                under this subparagraph;
            ``(E) if the offender attempts to cause or knowingly or 
        recklessly causes serious bodily injury from conduct in 
        violation of subsection (a)(5)(A), a fine under this title, 
        imprisonment for not more than 20 years, or both;
            ``(F) if the offender attempts to cause or knowingly or 
        recklessly causes death from conduct in violation of subsection 
        (a)(5)(A), a fine under this title, imprisonment for any term 
        of years or for life, or both; or
            ``(G) a fine under this title, imprisonment for not more 
        than 1 year, or both, for--
                    ``(i) any other offense under subsection (a)(5); or
                    ``(ii) an attempt to commit an offense punishable 
                under this subparagraph.''; and
                    (D) by striking paragraph (5); and
            (3) in subsection (g)--
                    (A) in the second sentence, by striking ``in 
                clauses (i), (ii), (iii), (iv), or (v) of subsection 
                (a)(5)(B)'' and inserting ``in subclauses (I), (II), 
                (III), <DELETED>(IV), (V), or (VI)</DELETED> (IV), or 
                (V) of subsection (c)(4)(A)(i)''; and
                    (B) in the third sentence, by striking ``subsection 
                (a)(5)(B)(i)'' and inserting ``subsection 
                (c)(4)(A)(i)(I)''.
    (b) Conforming Changes.--Section 2332b(g)(5)(B)(i) of title 18, 
United States Code, is amended by striking ``1030(a)(5)(A)(i) resulting 
in damage as defined in 1030(a)(5)(B)(ii) through (v)'' and inserting 
``1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) 
through (VI)''.

SEC. 6. CYBER-EXTORTION.

    Section 1030(a)(7) of title 18, United States Code, is amended to 
read as follows:
            ``(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--
                    ``(A) threat to cause damage to a protected 
                computer;
                    ``(B) threat to obtain information from a protected 
                computer without authorization or in excess of 
                authorization or to impair the confidentiality of 
                information obtained from a protected computer without 
                authorization or by exceeding authorized access; or
                    ``(C) demand or request for money or other thing of 
                value in relation to damage to a protected computer, 
                where such damage was caused to facilitate the 
                extortion;''.

SEC. 7. CONSPIRACY TO COMMIT CYBER-CRIMES.

    Section 1030(b) of title 18, United States Code, is amended by 
inserting ``conspires to commit or'' after ``Whoever''.

SEC. 8. USE OF FULL INTERSTATE AND FOREIGN COMMERCE POWER FOR CRIMINAL 
              PENALTIES.

    Section 1030(e)(2)(B) of title 18, United States Code, is amended 
by inserting ``or affecting'' after ``which is used in''.

SEC. 9. FORFEITURE FOR SECTION 1030 VIOLATIONS.

    Section 1030 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(i)(1) The court, in imposing sentence on any person convicted of 
a violation of this section, or convicted of conspiracy to violate this 
section, shall order, in addition to any other sentence imposed and 
irrespective of any provision of State law, that such person forfeit to 
the United States--
            ``(A) such person's interest in any personal property that 
        was used or intended to be used to commit or to facilitate the 
        commission of such violation; and
            ``(B) any property, real or personal, constituting or 
        derived from, any proceeds that such person obtained, directly 
        or indirectly, as a result of such violation.
    ``(2) The criminal forfeiture of property under this subsection, 
any seizure and disposition thereof, and any judicial proceeding in 
relation thereto, shall be governed by the provisions of section 413 of 
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 
U.S.C. 853), except subsection (d) of that section.
    ``(j) For purposes of subsection (i), the following shall be 
subject to forfeiture to the United States and no property right shall 
exist in them:
            ``(1) Any personal property used or intended to be used to 
        commit or to facilitate the commission of any violation of this 
        section, or a conspiracy to violate this section.
            ``(2) Any property, real or personal, which constitutes or 
        is derived from proceeds traceable to any violation of this 
        section, or a conspiracy to violate this section''.

SEC. 10. DIRECTIVE TO UNITED STATES SENTENCING COMMISSION.

    (a) Directive.--Pursuant to its authority under section 994(p) of 
title 28, United States Code, and in accordance with this section, the 
United States Sentencing Commission shall review its guidelines and 
policy statements applicable to persons convicted of offenses under 
sections 1028, 1028A, 1030, 2511, and 2701 of title 18, United States 
Code, and any other relevant provisions of law, in order to reflect the 
intent of Congress that such penalties be increased in comparison to 
those currently provided by such guidelines and policy statements.
    (b) Requirements.--In determining its guidelines and policy 
statements on the appropriate sentence for the crimes enumerated in 
subsection (a), the United States Sentencing Commission shall consider 
the extent to which the guidelines and policy statements may or may not 
account for the following factors in order to create an effective 
deterrent to computer crime and the theft or misuse of personally 
identifiable data:
            (1) The level of sophistication and planning involved in 
        such offense.
            (2) Whether such offense was committed for purpose of 
        commercial advantage or private financial benefit.
            (3) The potential and actual loss resulting from the 
        offense including--
                    (A) the value of information obtained from a 
                protected computer, regardless of whether the owner was 
                deprived of use of the information; and
                    (B) where the information obtained constitutes a 
                trade secret or other proprietary information, the cost 
                the victim incurred developing or compiling the 
                information.
            (4) Whether the defendant acted with intent to cause either 
        physical or property harm in committing the offense.
            (5) The extent to which the offense violated the privacy 
        rights of individuals.
            (6) The effect of the offense upon the operations of an 
        agency of the United States Government, or of a State or local 
        government.
            (7) Whether the offense involved a computer used by the 
        United States Government, a State, or a local government in 
        furtherance of national defense, national security, or the 
        administration of justice.
            (8) Whether the offense was intended to, or had the effect 
        of, significantly interfering with or disrupting a critical 
        infrastructure.
            (9) Whether the offense was intended to, or had the effect 
        of, creating a threat to public health or safety, causing 
        injury to any person, or causing death.
            (10) Whether the defendant purposefully involved a juvenile 
        in the commission of the offense.
            (11) Whether the defendant's intent to cause damage or 
        intent to obtain personal information should be disaggregated 
        and considered separately from the other factors set forth in 
        USSG 2B1.1(b)(14).
            (12) Whether the term ``victim'' as used in USSG 2B1.1, 
        should include individuals whose privacy was violated as a 
        result of the offense in addition to individuals who suffered 
        monetary harm as a result of the offense.
            (13) Whether the defendant disclosed personal information 
        obtained during the commission of the offense.
    (c) Additional Requirements.--In carrying out this section, the 
United States Sentencing Commission shall--
            (1) assure reasonable consistency with other relevant 
        directives and with other sentencing guidelines;
            (2) account for any additional aggravating or mitigating 
        circumstances that might justify exceptions to the generally 
        applicable sentencing ranges;
            (3) make any conforming changes to the sentencing 
        guidelines; and
            (4) assure that the guidelines adequately meet the purposes 
        of sentencing as set forth in section 3553(a)(2) of title 18, 
        United States Code.
                                                       Calendar No. 459

110th CONGRESS

  1st Session

                                S. 2168

_______________________________________________________________________

                                 A BILL

  To amend title 18, United States Code, to enable increased federal 
 prosecution of identity theft crimes and to allow for restitution to 
                       victims of identity theft.

_______________________________________________________________________

                            November 1, 2007

                        Reported with amendments