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SecurityFocus logo 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.

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