117 S2139 IS: International Cy­ber­crime Prevention Act
U.S. Senate
2021-06-21
text/xml
EN
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II
117th CONGRESS
1st Session
S. 2139
IN THE SENATE OF THE UNITED STATES
June 21, 2021
Mr. Whitehouse (for himself, Mr. Graham, Mr. Tillis, and Mr. Blumenthal) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend title 18, United States Code, to prevent international cybercrime, and for other purposes.
1.

Short title
This Act may be cited as the “International Cy­ber­crime Prevention Act”.
2.

Predicate offenses
Part I of title 18, United States Code, is amended—
(1)
in section 1956(c)(7)(D)—
(A)
by striking “or section 2339D” and inserting “section 2339D”; and
(B)
by striking “of this title, section 46502” and inserting “, or section 2512 (relating to the manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices) of this title, section 46502”; and
(2)
in section 1961(1), by inserting “section 1030 (relating to fraud and related activity in connection with computers) if the act indictable under section 1030 is felonious,” before “section 1084”.
3.

Forfeiture
(a)

In general
Section 2513 of title 18, United States Code, is amended to read as follows:
“2513.

Confiscation of wire, oral, or electronic communication intercepting devices and other property
(a)

Criminal forfeiture
(1)

In general
The court, in imposing a sentence on any person convicted of a violation of section 2511 or 2512, or convicted of conspiracy to violate section 2511 or 2512, 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 property, real or personal, 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 gross proceeds, or any property traceable to such property, that such person obtained or retained directly or indirectly as a result of such violation.
(2)

Forfeiture procedures
Pursuant to section 2461(c) of title 28, the provisions of section 413 of the Controlled Substances Act (21 U.S.C. 853), other than subsection (d) thereof, shall apply to criminal forfeitures under this subsection.
(b)

Civil forfeiture
(1)

In general
The following shall be subject to forfeiture to the United States in accordance with provisions of chapter 46, and no property right shall exist in them:
(A)
Any property, real or personal, used or intended to be used, in any manner, to commit, or facilitate the commission of a violation of section 2511 or 2512, or a conspiracy to violate section 2511 or 2512.
(B)
Any property, real or personal, constituting, or traceable to the gross proceeds taken, obtained, or retained in connection with or as a result of a violation of section 2511 or 2512, or a conspiracy to violate section 2511 or 2512.
(2)

Forfeiture procedures
Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46, relating to civil forfeitures, except that such duties as are imposed on the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security or the Attorney General.”.
(b)

Technical and conforming amendment
The table of sections for chapter 119 is amended by striking the item relating to section 2513 and inserting the following:
“2513. Confiscation of wire, oral, or electronic communication intercepting devices and other property.”.
4.

Shutting down botnets
(a)

Amendment
Section 1345 of title 18, United States Code, is amended—
(1)
in the heading, by inserting “and abuse” after “fraud”;
(2)
in subsection (a)—
(A)
in paragraph (1)—
(i)
in subparagraph (B), by striking “or” at the end;
(ii)
in subparagraph (C), by inserting “or” after the semicolon; and
(iii)
by inserting after subparagraph (C) the following:
“(D)
violating or about to violate section 1030(a)(5) of this title where such conduct has caused or would cause damage (as defined in section 1030) without authorization to 100 or more protected computers (as defined in section 1030) during any 1-year period, including by—
(i)
impairing the availability or integrity of the protected computers without authorization; or
(ii)
installing or maintaining control over malicious software on the protected computers that, without authorization, has caused or would cause damage to the protected computers;”; and
(B)
in paragraph (2), in the matter preceding subparagraph (A), by inserting “, a violation described in subsection (a)(1)(D),” before “or a Federal”; and
(3)
by adding at the end the following:
“(c)
A restraining order, prohibition, or other action described in subsection (b), if issued in circumstances described in subsection (a)(1)(D), may, upon application of the Attorney General—
(1)
specify that no cause of action shall lie in any court against a person for complying with the restraining order, prohibition, or other action; and
(2)
provide that the United States shall pay to such person a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in complying with the restraining order, prohibition, or other action.”.
(b)

Technical and conforming amendment
The table of sections for chapter 63 of title 18, United States Code, is amended by striking the item relating to section 1345 and inserting the following:
“1345. Injunctions against fraud and abuse.”.
5.

Aggravated damage to a critical infrastructure computer
(a)

In general
Chapter 47 of title 18, United States Code, is amended by inserting after section 1030 the following:
“1030A.

Aggravated damage to a critical infrastructure computer
(a)

Offense
It shall be unlawful, during and in relation to a felony violation of section 1030, to knowingly cause or attempt to cause damage to a critical infrastructure computer, if such damage results in (or, in the case of an attempted offense, would, if completed, have resulted in) the substantial impairment—
(1)
of the operation of the critical infrastructure computer; or
(2)
of the critical infrastructure associated with such computer.
(b)

Penalty
Any person who violates subsection (a) shall, in addition to the term of punishment provided for the felony violation of section 1030, be fined under this title, imprisoned for not more than 20 years, or both.
(c)

Consecutive sentence
Notwithstanding any other provision of law—
(1)
a court shall not place any person convicted of a violation of this section on probation;
(2)
except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any term of imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony violation of section 1030;
(3)
in determining any term of imprisonment to be imposed for the felony violation of section 1030, a court shall not in any way reduce the term to be imposed for such violation to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; and
(4)
a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, if such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the United States Sentencing Commission pursuant to section 994 of title 28.
(d)

Definitions
In this section—
(1)
the terms computer and damage have the meanings given the terms in section 1030; and
(2)
the term critical infrastructure means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have catastrophic regional or national effects on public health or safety, economic security, or national security, including voter registration databases, voting machines, and other communications systems that manage the election process or report and display results on behalf of State and local governments.”.
(b)

Table of sections
The table of sections for chapter 47 of title 18, United States Code, is amended by inserting after the item relating to section 1030 the following:
“1030A. Aggravated damage to a critical infrastructure computer.”.
6.

Stopping trafficking in botnets; forfeiture
Section 1030 of title 18, United States Code, is amended—
(1)
in subsection (a)—
(A)
in paragraph (7), by adding “or” at the end; and
(B)
by inserting after paragraph (7) the following:
“(8)
intentionally traffics in the means of access to a protected computer, if—
(A)
the trafficker knows or has reason to know the protected computer has been damaged in a manner prohibited by this section; and
(B)
the promise or agreement to pay for the means of access is made by, or on behalf of, a person the trafficker knows or has reason to know intends to use the means of access to—
(i)
damage a protected computer in a manner prohibited by this section; or
(ii)
violate section 1037 or 1343;”;
(2)
in subsection (c)(3)—
(A)
in subparagraph (A), by striking “(a)(4) or (a)(7)” and inserting “(a)(4), (a)(7), or (a)(8)”; and
(B)
in subparagraph (B), by striking “(a)(4), or (a)(7)” and inserting “(a)(4), (a)(7), or (a)(8)”;
(3)
in subsection (e)—
(A)
in paragraph (13), by striking “and” at the end;
(B)
in paragraph (14), by striking the period at the end and inserting “; and”; and
(C)
by adding at the end the following:
“(15)
the term traffic, except as provided in subsection (a)(6), means transfer, or otherwise dispose of, to another as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.”;
(4)
in subsection (g), in the first sentence, by inserting “, except for a violation of subsection (a)(8),” after “of this section”; and
(5)
by striking subsections (i) and (j) and inserting the following:
“(i)

Criminal forfeiture
(1)

In general
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 property, real or personal, 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 gross proceeds, or any property traceable to such property, that such person obtained, directly or indirectly, as a result of such violation.
(2)

Applicable provisions
The criminal forfeiture of property under this subsection, including any seizure and disposition of the property, and any related judicial or administrative proceeding, shall be governed by the provisions of section 413 of the Controlled Substances Act (21 U.S.C. 853), except subsection (d) of that section.
(j)

Civil forfeiture of property used in the commission of an offense
(1)

In general
Any personal property, including any Internet domain name or Internet Protocol address, that was 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 shall be subject to forfeiture to the United States, and no property right shall exist in such property.
(2)

Applicable provisions
Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 relating to civil forfeitures, except that such duties as are imposed on the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security or the Attorney General.”.