Senate Bill No. 503
(By Senators Rowe, Unger, Caldwell and Jenkins)
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[Introduced February 12, 2003; referred to
the Committee on the Judiciary.]
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A BILL to amend article three-c, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
four-a; and to amend and reenact sections seven, fourteen-a
and sixteen of said article, all relating to computer crime
and abuse; providing penalty for unauthorized access to
certain government computers or computer networks; specifying
amount of monetary damage resulting from alteration,
destruction, etc., that constitutes a felony; making technical
corrections; clarifying elements for threatening to commit a
crime; and removing element that injury must be to person or
property in order to seek civil relief for violation of
article.
Be it enacted by the Legislature of West Virginia:
That article three-c, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section four-a;
and to amend and reenact sections seven, fourteen-a and sixteen of
said article, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-4a. Unauthorized access to government computer.
(a) Any person who, knowingly, willfully and without
authorization, directly or indirectly, accesses or causes to be
accessed, any computer or computer network intended for the
exclusive use of any state, county or municipal government agency
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, confined in the county or
regional jail for not more than one year, or both.
(b) Any person who, knowingly, willfully and without
authorization, directly or indirectly, accesses or causes to be
accessed any computer or computer network intended for the
exclusive use of any state, county or municipal government agency
with the intent to harm such governmental entity is guilty of a
felony and, upon conviction thereof, shall be fined not more than
ten thousand dollars, imprisoned in a state correctional facility
for not more than ten years, or both fined and imprisoned.
§61-3C-7. Alteration, destruction, etc., of computer equipment.
(a) Misdemeanor offenses. -- Any person who knowingly,
willfully and without authorization, directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to
tamper with, delete, alter, damage or destroy any computer,
computer network, computer software, computer resources, computer
program or computer data or who knowingly introduces, directly or
indirectly, a computer contaminant into any computer, computer
program or computer network which results in a loss of value of
property or computer services up to one thousand dollars, is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
more than one thousand dollars or confined in the county or
regional jail not more than six months, or both.
(b) Felony offenses. -- Any person who knowingly, willfully
and without authorization, directly or indirectly, damages or
destroys or attempts to damage or destroy any computer, computer
network, computer software, computer resources, computer program or
computer data by knowingly introducing, directly or indirectly, a
computer contaminant into any computer, computer program or
computer network which results in a loss of value of property or
computer services more than of one thousand dollars or more is
guilty of a felony and, upon conviction thereof, shall be fined not
less than two hundred dollars and not more than ten thousand
dollars or confined in a state correctional facility not more than
ten years, or both, or, in the discretion of the court, be fined
not less than two hundred nor more than one thousand dollars and
confined in the county or regional jail not more than one year.
§61-3C-14a. Obscene, anonymous, harassing and threatening
communications by computer; penalty.
(a) It is unlawful for any person, with the intent to harass
or abuse another person, to use a computer to:
(1) Make contact with another without disclosing his or her
identity; with the intent to harass or abuse
(2) Make contact with a person after being requested by the
person to desist from contacting them;
(3) Threaten to commit a crime; against any person or property
or
(4) Cause obscene material to be delivered or transmitted to
a specific person after being requested to desist from sending such
material.
For purposes of this section, "obscene material" means
material that:
(A) An average person, applying contemporary adult community
standards, would find, taken as a whole, appeals to the prurient
interest, is intended to appeal to the prurient interest or is
pandered to a prurient interest;
(B) An average person, applying contemporary adult community
standards, would find, depicts or describes, in a patently
offensive way, sexually explicit conduct consisting of an ultimate
sexual act, normal or perverted, actual or simulated, an excretory
function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and
(C) A reasonable person would find, taken as a whole, lacks
literary, artistic, political or scientific value.
(b) It is unlawful for any person to knowingly permit a
computer under his or her control to be used for any purpose
prohibited by this section.
(c) Any offense committed under this section may be determined
to have occurred at the place at which the contact originated or
the place at which the contact was received or intended to be
received.
(d) Any person who violates a provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars or confined in a county or
regional jail not more than six months, or both. For a second or
subsequent offense, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand
dollars or confined in a county or regional jail for not more than
one year, or both.
§61-3C-16. Civil relief; damages.
(a) Any person whose property or person who is injured by
reason of a violation of any provision of this article may sue
therefor in circuit court and may be entitled to recover for each
violation:
(1) Compensatory damages;
(2) Punitive damages; and
(3) Such other relief, including injunctive relief, as the
court may deem appropriate.
Without limiting the generality of the term, "damages" shall
include loss of profits.
(b) At the request of any party to an action brought pursuant
to this section, the court may, in its discretion, conduct all
legal proceedings in such a manner as to protect the secrecy and
security of the computer network, computer data, computer program
or computer software involved in order to prevent any possible
recurrence of the same or a similar act by another person or to
protect any trade secret or confidential information of any person.
For the purposes of this section "trade secret" means the whole or
any portion or phase of any scientific or technological
information, design, process, procedure or formula or improvement
which is secret and of value. A trade secret shall be presumed to
be secret when the owner thereof takes measures to prevent it from
becoming available to persons other than those authorized by the
owner to have access thereto for a limited purpose.
(c) The provisions of this section shall not be construed to
limit any person's right to pursue any additional civil remedy
otherwise allowed by law.
(d) A civil action under this section must be commenced before
the earlier of: (1) Five years after the last act in the course of conduct constituting a violation of this article; or (2) two years
after the plaintiff discovers or reasonably should have discovered
the last act in the course of conduct constituting a violation of
this article.
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(NOTE: The purpose of this bill is to provide for the
criminal offense of unauthorized access to a government computer
and to clarify or correct existing provisions of the computer crime
and abuse act.
§61-3C-4a is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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