Summer 2008 - #9. A Look at Vermont's Computer Crime Statute.

Author:by Matthew S. Borick, Esq.
 
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Vermont Bar Journal

2008.

Summer 2008 - #9.

A Look at Vermont's Computer Crime Statute

The Vermont Bar Journal #174, Volume 34, No. 2 SUMMER 2008

A Look at Vermont's Computer Crime Statuteby Matthew S. Borick, Esq.

Introduction

According to the U.S. Census Bureau, in 2003 approximately 66 percent (or 168,000) of all households in Vermont owned a computer, and nearly all of those households used the Internet.(fn1) Now, five years later, it would not be surprising if these numbers were approaching 80 to 90 percent. Computers have become woven into the fabric of our daily lives. We use computers to conduct business, buy goods, correspond with family and friends, pay bills, keep records, seek medical and other advice, and even date!

Notwithstanding these valued uses, people also use computers for improper purposes. For example, in January 2008, an employee at an architectural office in Jacksonville, Florida, accessed and deleted all of the company's computer data on the (mistaken) assumption that she was about to be fired.(fn2) She erased an estimated $2.5 million worth of data including seven years' worth of blueprints and architectural drawings. That same month, hackers infiltrated Pennsylvania's official government website and caused the site to be shut down for several hours.(fn3) If this could happen in Pennsylvania it could happen here, right? Absolutely--and, in fact, it did. Vermont's government computers were hacked into in 2007, exposing the personal information of roughly 70,000 Vermonters.(fn4) The law has given a name to incidents such as those noted above--they are called "computer crimes" or "cybercrimes." To address the growing problem of cybercrime, every state in the country has enacted some type of computer crime statute.(fn5) In addition, a number of federal statutes--most notably the Computer Fraud and Abuse Act,(fn6) the Electronic Communications Privacy Act,(fn7) and the CAN-SPAM Act(fn8)-- address various types and aspects of cybercrime.

Vermont was the last state in the U.S. to add a computer crime statute to its books.(fn9) The statute was enacted in 1999 and is codified in Title 13, Chapter 87, of the Vermont Statutes.(fn10) But despite having been in force for nearly ten years, not a single reported case in Vermont-- at the state or federal level--has inter preted or applied the statute; in fact, no cases appear to have even mentioned it.(fn11) A number of reasons might account for this. First, the statute might be "new" enough that few people even know of its existence. Second, would-be victims under the statute might not even realize that they are victims.(fn12) Third, computer usage and technology are moving at such a fast pace that the statute cannot keep up with them.(fn13) Finally, the statute might be pre-empted in certain cases where it otherwise could apply, such as cases brought under the Vermont Trade Secrets Act or the U.S. Copyright Act.

The remainder of this article focuses on Vermont's computer crime statute in more detail. The article first summarizes the statute's key prohibitions and other provisions. The article then examines the types of civil cases we might expect to see under the statute in the coming years.

An Overview of Vermont's Computer Crime Statute

Vermont's computer crime statute generally prohibits four types of conduct: (1) unauthorized access; (2) access for fraudulent purposes; (3) alteration, damage, or interference; and (4) theft or destruction. It bears noting that the statute casts a fairly wide net in that it protects not only computers, but also computer systems, computer networks, computer software, computer programs, and data contained in any of the foregoing.(fn14) Each of these terms is defined in the statute.(fn15)

Unauthorized Access. Section 4102 of the statute prohibits a person from accessing a computer knowingly, intentionally, and without lawful authority.(fn16) The term "access" is broadly defined in the statute to include instructing, communicating with, storing or entering data in, retrieving data from, or otherwise using any resources of a computer.(fn17) The phrase "without lawful authority," however, is not defined anywhere in the statute.(fn18) A violation of 4102 carries a maximum penalty of six months in prison and/or a $500 fine.

Access for Fraudulent Purposes. Section 4103 of the statute prohibits a person from intentionally, and without lawful authority, accessing or causing to be accessed a computer for any of three purposes: (1) executing a fraudulent scheme or artifice; (2) obtaining money, property, or services using false or fraudulent pretenses, representations, or promises; and (3) in connection with a fraudulent scheme or artifice, damaging, destroying, altering, deleting, copying, retrieving, interfering with, denying access to, or removing any program or data from a computer.(fn19) The penalty for violating 4103 varies depending on the "value of the matter involved."(fn20) If the value does not exceed $500 for a first offense, the maximum penalty is one year in prison and/or a $500 fine. If the value does not exceed $500 for any subsequent offense, the maximum penalty is two years in prison and/or a $1,000 fine. Finally, if the value exceeds $500, the maximum penalty jumps substantially to ten years in prison and/ or a $10,000 fine.

Alteration, Damage, or Interference. Section 4104 of the statute prohibits a person from intentionally, and without lawful authority, altering, damaging, or interfering with the operation of a computer.(fn21) The penalty for violating 4104 varies depending on the damage or loss resulting from the violation.(fn22) If the damage or loss does not exceed $500 for a first offense, the maximum penalty is one year in prison and/or a $500 fine. If the damage or loss does not exceed $500 for any subsequent offense, the maximum penalty is two years in prison and/or a $1,000 fine. Finally, if the damage or loss exceeds $500, the maximum penalty is ten years in prison and/or a $10,000 fine.

Theft or Destruction. Section 4105 of the statute prohibits a person from (1) intentionally, and without claim of right, depriving the owner of possession of, taking, transferring, copying, concealing, or retaining possession of a computer; and (2) intentionally, and without lawful authority, destroying a computer.(fn23) The penalties for violating 4105 are identical to those for 4104.(fn24)

Vermont's computer crime statute is generally written as a criminal statute, with various maximum fines and prison terms set for particular offenses. However, in additional to criminal prosecution, the statute also expressly provides that any person damaged by a violation of the statute may bring a civil action against the violator.(fn25) Plaintiffs in a civil action under the statute may...

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