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In a 385-3 vote, the House of Representatives last week approved the Cyber Security Enforcement Act of 2002, H.R. 3482, sponsored by Rep. Lamar Smith, R-Texas, and first introduced in December. This legislation, which still requires action by the Senate, would work various legal changes in the area of computer crimes and appears to stem from concerns raised by the Sept. 11 terrorist attacks. H.R. 3482 The legislation has different facets and seeks to accomplish a variety of objectives. Some of the more noteworthy aspects of the legislation include: • Directing the U.S. Sentencing Commission to review and possibly amend federal sentencing guidelines with respect to computer crimes in light of national security, critical infrastructure or public health safety; • Immunizing from potential criminal conduct emergency disclosures to the government by electronic communications services made in good faith and later also reported to the attorney general and Congress; • Expanding the legal protection for communications providers that legally assist law enforcement investigations under the emergency disclosure exception under the USA Patriot Act to include information disclosed pursuant to statutory authorization; • Directing the attorney general to create a National Infrastructure Protection Center to act as a national focal point for threat assessment, warning, investigation and response to physical and cyber attacks on critical national infrastructure; • Prohibiting the advertising of illegal interception devices through the Internet and other specified media; • Increasing penalties in this area when the offender knowingly causes or attempts to cause death or serious bodily injury; • Adding immediate threats to national security and ongoing attacks on protected computers to those other contexts in which emergency electronic surveillance tools known as pen registers or trace and trap devices may be used; and • Broadening the offense and increasing the penalties for illegally intercepting cell phone communications or invading the privacy of the stored communications of other people, while providing that a law enforcement officer need not be physically present for a warrant to be served under the Electronic Privacy Act. NEXT Congress obviously feels strongly about this legislation, given the overwhelming vote of approval. Plainly, acts of terrorism can be physical, like those of Sept. 11, but they also can be directed through computers. Thus, Congress rightly is concerned. Whether this particular piece of legislation will also meet with Senate approval and then will get the job done remain to be seen. While it will be important to thwart and deal with computer crime, it also will be worthwhile not to trample on privacy rights of innocent third-parties in the process. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris. Sinrod may be reached by e-mail at [email protected].

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