Feds Seek Public Input on Hacker Sentencing

Sick and tired of a revolving door justice system that lets hackers skate

with just a few measly years in prison? Or do you think that the courts are

already too hard on online miscreants who sometimes go up the creek for

longer than many killers?

Either way, the U.S. government wants to hear from you.

Last week the presidential-appointed commission responsible for setting

federal sentencing rules formally asked the public's advice on the formula

used to sentence hackers and virus writers to prison or probation, as part

of a review ordered by lawmakers increasingly concerned that computer

criminals are getting off easy.

"All we're really looking for is for people to comment," says Michael

O'Neill, a law professor at George Mason University Law School, and a

member of the United States Sentencing Commission (USSC). "Do they think

we're going down the wrong road? How do they feel about the penalty

structure?"

The USSC's Federal Sentencing Guidelines set the range of sentences a court

can choose from in a given case, based on a point system that sets a

starting value for a particular crime, and then adds or subtracts points for

specific aggravating or mitigating circumstances.

A convicted kidnapper, for example, starts off with 24 sentencing points --

which maps to 51 - 63 months imprisonment for a first-time offender. But if

the culprit held his victim for 30 days or more, he gets two bonus points,

translating to an additional 12 - 15 months. The criminal earns another six

points if he demanded a ransom, and two points for injuring a victim -- but

can shave off two points for pleading guilty and accepting responsibility

for the crime.

Though they're called "guidelines," the rules are generally binding on

judges.

Computer crimes currently share sentencing guidelines with larceny,

embezzlement and theft, where the most significant sentencing factor is the

amount of financial loss inflicted, and additional points are awarded for

using false ID or ripping off more than 10 victims. But in a congressional

session that heard much talk about "cyberterrorism," lawmakers became

convinced that computer outlaws had more in common with al Qaida than common

thieves.

DETERRENT VALUE? Consequently, one of the provisions in the massive Homeland Security Act

passed last November requires the USSC to review the cyber crime sentencing

guidelines to ensure they take into account "the serious nature of such

offenses, the growing incidence of such offenses, and the need for an

effective deterrent and appropriate punishment to prevent such offenses."

(The law also created new penalties for hackers who literally kill people

over the Internet.)

"It's not clear what Congress wants the sentencing commission to do," says

Orin Kerr, a cyber law professor at George Washington University Law School,

and a former attorney with the Justice Department's computer crime section.

"In fact, the section seems to say, go back and think a lot about sentences,

and then file a report."

Last week the commission -- normally seven members; currently five pending

two replacement appointments -- turned to the public for advice, publishing

a formal "Issue for Comment" on the general question of whether sentences

are strong enough to deter and punish cyber evildoers, and on eight specific

proposals to add more variables to the formula that produces a hacker's

sentence.

The possibilities include adding extra points for financially motivated

hackers, or for intruders that invade an individual's privacy.

The formal notice is available from the United

States Sentencing Commission's Web site, along with a detailed list

[pdf] of the questions the commission is pondering.

"It's important for us to get input from people who are technologically

familiar with these issues to be able to think about ... potential changes

that might be appropriate," says O'Neill. "We want to know whether or not

the relevant community... believes that serious penalties will deter people

from engaging in that sort of conduct."

Kerr says he's already filed his comments. "Computer crime penalties are as

stiff as normal penalties... In fact there are a few provisions that treat

computer crimes more harshly than traditional crimes," he says. "I think the

trick is to make sure the sentencing commission doesn't believe that it

needs to jack up sentences, which it shouldn't do."

The public comment period ends on February 18th. By Kevin Poulsen