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The courts may one day treat recreational hackers with a gentler justice than malicious intruders and cyber thieves, depending on the results of a study being spearheaded by a member of the government commission responsible for setting federal sentences.

Since 11 September and the passing of the USA Patriot Act into law, hackers have been lumped into an homogeneous and enigmatic category of evildoers, along with terrorists, drug dealers, and arms smugglers. The act provides for a maximum of ten years in jail for first time computer criminals, and the definitions of these crimes are vague at best.

But the USA Patriot Act alone does not govern how judges sentence hackers. That job is left up to the United States Sentencing Commission (USSC), and the task of discerning the harmless intrusion from the harmful has fallen squarely on the shoulders of Michael Edmund O'Neill.

The USSC, as O'Neill puts it, "creates sentencing guidelines for all federal courts. It crafts the guidelines that enable judges to choose appropriate sentences within statutorily authorized ranges." That means that the commission is responsible for building charts and formulae that tell federal judges what range of possible sentences a criminal should face -- from probation to life imprisonment. The term "guidelines" is slightly misleading here: these guidelines are binding, and all federal judges must sentence according to them.

Currently, the guidelines regarding computer crime are the same as for larceny, embezzlement and theft, with factors like financial loss and "use of special skills" dictating the offender's sentence. O'Neill hopes to refine the guidelines for computer crime, possibly making the intruder's motives a factor in their legal fate.

O'Neill is certainly the commissioner most qualified for the task. He describes himself as the product of what was possibly the most technologically advanced high school in Wisconsin. In the mid 1980's, while other schools were struggling to keep their Apple IIs up to date, O'Neill's high school was teaching its students how to program C, Fortran, and Cobol. Later, while he attended Brigham Young University in Utah, O'Neill got a summer job writing WordPerfect's first thesaurus in C.

It's not the sort of background you'd expect to see behind Clinton's last appointee to the seven-person United States Sentencing Commission. When he's not writing sentencing guidelines, O'Neill is an assistant law professor at George Mason University, and it is here that he is undertaking his academic study on the causes and rationales behind computer crime.

Sentences Rarely Drop

The most common rationale: Money. Those who would steal credit card numbers, commit identity theft, or build elaborate con games to harvest cash are at the focal point of O'Neill's investigation. As he puts it "The Internet affords con-men access to a massive number of people. Why should the laws be any less stringent when the criminal has access to twenty times more potential targets?"

But con artists aren't the only ones under O'Neill's microscope. He says his team has been interviewing convicted hackers in order to find out where the line between experimentation and exploitation can be drawn effectively. His study may result in new sentencing guidelines that treat minor hacking offenses as vandalism, rather than imprisonable crimes.

Hacker defense attorney Jennifer Granick is skeptical. "In my experience as an observer [of the USSC] I have rarely, if ever, seen sentences go down," says Granick, the litigation director at the Stanford University Center for Internet and Society. "In order for them to be fair, they're going to have to go down."

Granick worries that O'Neill will simply increase penalties for more severe intrusion, while using the current sentencing guidelines for harmless attacks. If so, sentences for script kiddies would remain the same, while hardened professionals could see sentences skyrocket past 20 years.

It remains to be seen how O'Neill's study will sway his fellow USSC members. Perhaps his research will help keep harmless experimenters out of jail. Or it may increase sentences for all computer criminals, regardless of their crimes. Either way, in the coming months, the USSC will hold in its hands the fate of hackers, script kiddies and cyber thieves across America.

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