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Published online by Cambridge University Press: 16 November 2018
Despite an ongoing drive by organizations around the world to improve the sophistication of their risk mitigation measures, cyber-attacks are continually increasing. A study by Panda Labs shows in Q3 in 2016 alone, 18 million new malware samples were captured.2 Another study from Computer Crime and Intellectual Property Section (CCIPS) shows more than 4,000 ransomware attacks occurred daily in 2016. That's a 300% increase over 2015, where 1,000 ransomware attacks were seen per day.3 These studies reflect the double effect of technology—connecting the world and facilitating cyber-attacks simultaneously.
© Hala Bou Alwan 2018. The author holds an LLM from Université La Sagesse, Furn-El-Chebak, Lebanon and is currently earning her Executive LLM from Boston University, Massachusetts, USA. This paper was supervised by Professor Virginia Greiman of Boston University.
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4 NCA Strategic Cyber Industry Group, Cyber Crime Assessment 2016, 7 July 2016, http://www.national-crimeagency.gov.uk/publications/709-cyber-crime-assessment-2016/file.
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14 Jonathan Stempel, Morgan Stanley pays $1 million SEC fine over stolen customer data, Reuters, June 8, 2016, https://www.reuters.com/article/us-morgan-stanley-sec/morgan-stanley-pays-1-million-sec-fine-over-stolen-customer-data-idUSKCN0YU27J (last visited Feb. 15, 2018).
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17 David Jones, Jim Finkle, U.S. indicts hackers in biggest cyber fraud case in history, Reuters, July 25, 2013, https://www.reuters.com/article/us-usa-hackers-creditcards/u-s-indicts-hackers-in-biggest-cyber-fraud-case-in-history-idUSBRE96O0RI20130725 (last visited Feb. 15, 2018).
18 Substantive cybercrime laws (e.g., laws prohibiting online identity theft, hacking, intrusion into computer systems, child pornography, intellectual property, online gambling): 18 U.S.C. § 1028—Fraud and related activity in connection with identification documents, authentication features, and information 18 U.S.C. § 1028A—Aggravated identity theft 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. § 1037—Fraud and related activity in connection with electronic mail 18 U.S.C. § 1343—Fraud by wire, radio, or television 18 U.S.C. § 1362—[Malicious mischief related to] Communications lines, stations, or systems 18 U.S.C. § 14//62—Importation or transportation of obscene matters 18 U.S.C. § 1465—Transportation of obscene matters for sale or distribution 18 U.S.C. § 1466A—Obscene visual representation of the sexual abuse of children 18 U.S.C. § 2251—Sexual exploitation of children 18 U.S.C. § 2252—Certain activities relating to material involving the sexual exploitation of minors 18 U.S.C. § 2252A—Certain activities relating to material constituting or containing child pornography 18 U.S.C. § 2252B—Misleading domain names on the Internet [to deceive minors] 18 U.S.C. § 2252C—Misleading words or digital images on the Internet 18 U.S.C. § 2425—Use of interstate facilities to transmit information about a minor 18 U.S.C. § 2319—Criminal infringement of a copyright 17 U.S.C. § 506—Criminal offenses [related to copyright] 47 U.S.C. 605—Unauthorized publication or use of communications The Unlawful Internet Gambling Enforcement Act of 2006 .Procedural cybercrime laws (e.g., authority to preserve and obtain electronic data from third parties, including internet service providers; authority to intercept electronic communications; authority to search and seize electronic evidence): 18 U.S.C. §§ 2510-2522—Interception of wire, oral, or electronic communication 18 U.S.C. §§ 2701-2712—Preservation and disclosure of stored wire and electronic communication 18 U.S.C. §§ 3121-3127—Pen registers and trap and trace devices
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23 COMPUTER FRAUD AND ABUSE ACT: (CFAA) (18 U.S.C. § 1030) is the main federal criminal statute regulating hacking and other computer crimes. The CFAA generally criminalizes: Accessing computers without, or in excess of, authorization. Using unlawfully accessed computers to obtain information that defrauds or causes loss or damage to another or the US government. In United States of America v. Aaron Swartz, Aaron Swartz, an American computer programmer, writer, political organizer and Internet activist, was prosecuted for many violations of the Computer Fraud and Abuse Act of 1986 (CFAA), after downloading a great many academic journal articles through the MIT computer network from a source (JSTOR) for which he had an account as a Harvard research fellow. Facing trial and the possibility of imprisonment, Swartz committed suicide, and the case was consequently dismissed
Protected Computers under the CFA: The CFAA governs cases involving protected computers, which are defined as computers that meet one or more of the following criteria: Exclusively used by a financial institution or the US government, and where the offense affects the computers' use by or for a financial institution or the US government. Used in or affecting interstate or foreign commerce or communication. This includes use of computers located outside the US that affects: interstate or foreign commerce; or communication within the US.
Wiretap Act and Electronic Communications Privacy Act- Randall David Fischer v. Mt. Olive Lutheran Church, et al.207 F. Supp.2d 914 (W.D. Wis., March 28, 2002)
Stored Communications Act: (SCA) makes it illegal to intentionally access, without or in excess of authorization, a facility through which an electronic communication service is provided, to obtain or prevent authorized access to a wire or electronic communication while it is in storage in the facility. Carpenter v. United States
DMCA Anti-Circumvention: The DMCA prohibits the: Circumvention of technological, anti-piracy measures built into most commercial software to control access to copyrighted works. Universal City Studios, Inc. v. Corley, 273 F.3d 429(2d Cir. 2001)
Racketeer Influenced and Corrupt Organizations Act (RICO Act): The RICO Act provides criminal penalties, including up to 20 years’ imprisonment, for acts performed as part of an ongoing criminal organization. Specifically, the RICO Act penalizes those engaged in a pattern of racketeering activity, which includes at least two acts of fraud and related activity in connection with Identification documents. Boyle v. United States (07-1309)-2007
SEC Office of Compliance, Inspections and Examinations (OCIE)
Financial Industry Regulatory Authority (FINRA)
Gramm-Leach Bliley Act (GLBA): Under the GLBA, financial institutions are required to “establish appropriate standards” to safeguard a customer's personal financial information, in order: “(1) to insure the security and confidentiality of customer records and information; (2) to protect against any anticipated threats or hazards to the security or integrity of such records; and (3) to protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer. Landry v. Union Planters Corp., 2003 WL 21355462 at * 3 (E.D.La. 2003) (quoting H.R. Rep. No. 106-434, at 245 (1999), reprinted in 1999 U.S.C.C.A.N. 245, 245) (emphasis added)”
Payment Card Industry Data Security Standard (PCI DSS) : The PCI DSS is not necessarily a “law” but a list of cyber security standards applied to any U.S. company that processes credit cards, such as a retailer or a financial institution. The list focuses on, among other general requirements, the need to “develop and maintain secure systems and applications,” and the need to “track and monitor all access to network resources and cardholder data.” TJX Companies Inc. V Framingham
Health Insurance Portability and Accountability Act of 1996 (HIPAA): Under HIPAA, a healthcare facility must protect against any reasonably anticipated threat or hazard to the security or integrity of such healthcare information. Under HIPAA, fines can range from $50,000 to $250,000 as well as civil litigation exposure. 7 Whalen v. Rose 429 U.S. 589, 599 (1977)
Health Information Technology for Economic and Clinical Health Act (the HITECH Act): The HITECH Act expands the scope of the institutions covered under HIPAA to now include any organization or individual who handles protected healthcare information, which could now include banks, businesses, schools and other organizations.
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