International Cy­ber­crime Prevention Act

II 117TH CONGRESS 1ST SESSION S. 2139 To amend title 18, United States Code, to prevent international cybercrime, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 21, 2021 Mr. WHITEHOUSE (for himself, Mr. GRAHAM, Mr. TILLIS, and Mr. BLUMENTHAL) introduced the following bill; which was read twice and re- ferred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to prevent international cybercrime, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘International Cyber- 4 crime Prevention Act’’. 5 SEC. 2. PREDICATE OFFENSES. 6 Part I of title 18, United States Code, is amended— 7 (1) in section 1956(c)(7)(D)— 8 (A) by striking ‘‘or section 2339D’’ and in- 9 serting ‘‘section 2339D’’; and 10 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 2139 IS (B) by striking ‘‘of this title, section 1 46502’’ and inserting ‘‘, or section 2512 (relat- 2 ing to the manufacture, distribution, possession, 3 and advertising of wire, oral, or electronic com- 4 munication intercepting devices) of this title, 5 section 46502’’; and 6 (2) in section 1961(1), by inserting ‘‘section 7 1030 (relating to fraud and related activity in con- 8 nection with computers) if the act indictable under 9 section 1030 is felonious,’’ before ‘‘section 1084’’. 10 SEC. 3. FORFEITURE. 11 (a) IN GENERAL.—Section 2513 of title 18, United 12 States Code, is amended to read as follows: 13 ‘‘§ 2513. Confiscation of wire, oral, or electronic com- 14 munication intercepting devices and 15 other property 16 ‘‘(a) CRIMINAL FORFEITURE.— 17 ‘‘(1) IN GENERAL.—The court, in imposing a 18 sentence on any person convicted of a violation of 19 section 2511 or 2512, or convicted of conspiracy to 20 violate section 2511 or 2512, shall order, in addition 21 to any other sentence imposed and irrespective of 22 any provision of State law, that such person forfeit 23 to the United States— 24 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 2139 IS ‘‘(A) such person’s interest in any prop- 1 erty, real or personal, that was used or intended 2 to be used to commit or to facilitate the com- 3 mission of such violation; and 4 ‘‘(B) any property, real or personal, consti- 5 tuting or derived from any gross proceeds, or 6 any property traceable to such property, that 7 such person obtained or retained directly or in- 8 directly as a result of such violation. 9 ‘‘(2) FORFEITURE PROCEDURES.—Pursuant to 10 section 2461(c) of title 28, the provisions of section 11 413 of the Controlled Substances Act (21 U.S.C. 12 853), other than subsection (d) thereof, shall apply 13 to criminal forfeitures under this subsection. 14 ‘‘(b) CIVIL FORFEITURE.— 15 ‘‘(1) IN GENERAL.—The following shall be sub- 16 ject to forfeiture to the United States in accordance 17 with provisions of chapter 46, and no property right 18 shall exist in them: 19 ‘‘(A) Any property, real or personal, used 20 or intended to be used, in any manner, to com- 21 mit, or facilitate the commission of a violation 22 of section 2511 or 2512, or a conspiracy to vio- 23 late section 2511 or 2512. 24 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 2139 IS ‘‘(B) Any property, real or personal, con- 1 stituting, or traceable to the gross proceeds 2 taken, obtained, or retained in connection with 3 or as a result of a violation of section 2511 or 4 2512, or a conspiracy to violate section 2511 or 5 2512. 6 ‘‘(2) FORFEITURE PROCEDURES.—Seizures and 7 forfeitures under this subsection shall be governed 8 by the provisions of chapter 46, relating to civil for- 9 feitures, except that such duties as are imposed on 10 the Secretary of the Treasury under the customs 11 laws described in section 981(d) shall be performed 12 by such officers, agents, and other persons as may 13 be designated for that purpose by the Secretary of 14 Homeland Security or the Attorney General.’’. 15 (b) TECHNICAL AND CONFORMING AMENDMENT.— 16 The table of sections for chapter 119 is amended by strik- 17 ing the item relating to section 2513 and inserting the 18 following: 19 ‘‘2513. Confiscation of wire, oral, or electronic communication intercepting de- vices and other property.’’. SEC. 4. SHUTTING DOWN BOTNETS. 20 (a) AMENDMENT.—Section 1345 of title 18, United 21 States Code, is amended— 22 (1) in the heading, by inserting ‘‘and abuse’’ 23 after ‘‘fraud’’; 24 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 2139 IS (2) in subsection (a)— 1 (A) in paragraph (1)— 2 (i) in subparagraph (B), by striking 3 ‘‘or’’ at the end; 4 (ii) in subparagraph (C), by inserting 5 ‘‘or’’ after the semicolon; and 6 (iii) by inserting after subparagraph 7 (C) the following: 8 ‘‘(D) violating or about to violate section 9 1030(a)(5) of this title where such conduct has 10 caused or would cause damage (as defined in 11 section 1030) without authorization to 100 or 12 more protected computers (as defined in section 13 1030) during any 1-year period, including by— 14 ‘‘(i) impairing the availability or in- 15 tegrity of the protected computers without 16 authorization; or 17 ‘‘(ii) installing or maintaining control 18 over malicious software on the protected 19 computers that, without authorization, has 20 caused or would cause damage to the pro- 21 tected computers;’’; and 22 (B) in paragraph (2), in the matter pre- 23 ceding subparagraph (A), by inserting ‘‘, a vio- 24 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 2139 IS lation described in subsection (a)(1)(D),’’ before 1 ‘‘or a Federal’’; and 2 (3) by adding at the end the following: 3 ‘‘(c) A restraining order, prohibition, or other action 4 described in subsection (b), if issued in circumstances de- 5 scribed in subsection (a)(1)(D), may, upon application of 6 the Attorney General— 7 ‘‘(1) specify that no cause of action shall lie in 8 any court against a person for complying with the 9 restraining order, prohibition, or other action; and 10 ‘‘(2) provide that the United States shall pay to 11 such person a fee for reimbursement for such costs 12 as are reasonably necessary and which have been di- 13 rectly incurred in complying with the restraining 14 order, prohibition, or other action.’’. 15 (b) TECHNICAL AND CONFORMING AMENDMENT.— 16 The table of sections for chapter 63 of title 18, United 17 States Code, is amended by striking the item relating to 18 section 1345 and inserting the following: 19 ‘‘1345. Injunctions against fraud and abuse.’’. SEC. 5. AGGRAVATED DAMAGE TO A CRITICAL INFRA- 20 STRUCTURE COMPUTER. 21 (a) IN GENERAL.—Chapter 47 of title 18, United 22 States Code, is amended by inserting after section 1030 23 the following: 24 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 2139 IS ‘‘§ 1030A. Aggravated damage to a critical infrastruc- 1 ture computer 2 ‘‘(a) OFFENSE.—It shall be unlawful, during and in 3 relation to a felony violation of section 1030, to knowingly 4 cause or attempt to cause damage to a critical infrastruc- 5 ture computer, if such damage results in (or, in the case 6 of an attempted offense, would, if completed, have resulted 7 in) the substantial impairment— 8 ‘‘(1) of the operation of the critical infrastruc- 9 ture computer; or 10 ‘‘(2) of the critical infrastructure associated 11 with such computer. 12 ‘‘(b) PENALTY.—Any person who violates subsection 13 (a) shall, in addition to the term of punishment provided 14 for the felony violation of section 1030, be fined under 15 this title, imprisoned for not more than 20 years, or both. 16 ‘‘(c) CONSECUTIVE SENTENCE.—Notwithstanding 17 any other provision of law— 18 ‘‘(1) a court shall not place any person con- 19 victed of a violation of this section on probation; 20 ‘‘(2) except as provided in paragraph (4), no 21 term of imprisonment imposed on a person under 22 this section shall run concurrently with any term of 23 imprisonment imposed on the person under any 24 other provision of law, including any term of impris- 25 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 2139 IS onment imposed for the felony violation of section 1 1030; 2 ‘‘(3) in determining any term of imprisonment 3 to be imposed for the felony violation of section 4 1030, a court shall not in any way reduce the term 5 to be imposed for such violation to compensate for, 6 or otherwise take into account, any separate term of 7 imprisonment imposed or to be imposed for a viola- 8 tion of this section; and 9 ‘‘(4) a term of imprisonment imposed on a per- 10 son for a violation of this section may, in the discre- 11 tion of the court, run concurrently, in whole or in 12 part, only with another term of imprisonment that 13 is imposed by the court at the same time on that 14 person for an additional violation of this section, if 15 such discretion shall be exercised in accordance with 16 any applicable guidelines and policy statements 17 issued by the United States Sentencing Commission 18 pursuant to section 994 of title 28. 19 ‘‘(d) DEFINITIONS.—In this section— 20 ‘‘(1) the terms ‘computer’ and ‘damage’ have 21 the meanings given the terms in section 1030; and 22 ‘‘(2) the term ‘critical infrastructure’ means 23 systems and assets, whether physical or virtual, so 24 vital to the United States that the incapacity or de- 25 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 2139 IS struction of such systems and assets would have cat- 1 astrophic regional or national effects on public 2 health or safety, economic security, or national secu- 3 rity, including voter registration databases, voting 4 machines, and other communications systems that 5 manage the election process or report and display 6 results on behalf of State and local governments.’’. 7 (b) TABLE OF SECTIONS.—The table of sections for 8 chapter 47 of title 18, United States Code, is amended 9 by inserting after the item relating to section 1030 the 10 following: 11 ‘‘1030A. Aggravated damage to a critical infrastructure computer.’’. SEC. 6. STOPPING TRAFFICKING IN BOTNETS; FOR- 12 FEITURE. 13 Section 1030 of title 18, United States Code, is 14 amended— 15 (1) in subsection (a)— 16 (A) in paragraph (7), by adding ‘‘or’’ at 17 the end; and 18 (B) by inserting after paragraph (7) the 19 following: 20 ‘‘(8) intentionally traffics in the means of ac- 21 cess to a protected computer, if— 22 ‘‘(A) the trafficker knows or has reason to 23 know the protected computer has been damaged 24 in a manner prohibited by this section; and 25 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 2139 IS ‘‘(B) the promise or agreement to pay for 1 the means of access is made by, or on behalf of, 2 a person the trafficker knows or has reason to 3 know intends to use the means of access to— 4 ‘‘(i) damage a protected computer in 5 a manner prohibited by this section; or 6 ‘‘(ii) violate section 1037 or 1343;’’; 7 (2) in subsection (c)(3)— 8 (A) in subparagraph (A), by striking 9 ‘‘(a)(4) or (a)(7)’’ and inserting ‘‘(a)(4), (a)(7), 10 or (a)(8)’’; and 11 (B) in subparagraph (B), by striking 12 ‘‘(a)(4), or (a)(7)’’ and inserting ‘‘(a)(4), 13 (a)(7), or (a)(8)’’; 14 (3) in subsection (e)— 15 (A) in paragraph (13), by striking ‘‘and’’ 16 at the end; 17 (B) in paragraph (14), by striking the pe- 18 riod at the end and inserting ‘‘; and’’; and 19 (C) by adding at the end the following: 20 ‘‘(15) the term ‘traffic’, except as provided in 21 subsection (a)(6), means transfer, or otherwise dis- 22 pose of, to another as consideration for the receipt 23 of, or as consideration for a promise or agreement 24 to pay, anything of pecuniary value.’’; 25 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 2139 IS (4) in subsection (g), in the first sentence, by 1 inserting ‘‘, except for a violation of subsection 2 (a)(8),’’ after ‘‘of this section’’; and 3 (5) by striking subsections (i) and (j) and in- 4 serting the following: 5 ‘‘(i) CRIMINAL FORFEITURE.— 6 ‘‘(1) IN GENERAL.—The court, in imposing sen- 7 tence on any person convicted of a violation of this 8 section, or convicted of conspiracy to violate this sec- 9 tion, shall order, in addition to any other sentence 10 imposed and irrespective of any provision of State 11 law, that such person forfeit to the United States— 12 ‘‘(A) such person’s interest in any prop- 13 erty, real or personal, that was used or intended 14 to be used to commit or to facilitate the com- 15 mission of such violation; and 16 ‘‘(B) any property, real or personal, consti- 17 tuting or derived from any gross proceeds, or 18 any property traceable to such property, that 19 such person obtained, directly or indirectly, as 20 a result of such violation. 21 ‘‘(2) APPLICABLE PROVISIONS.—The criminal 22 forfeiture of property under this subsection, includ- 23 ing any seizure and disposition of the property, and 24 any related judicial or administrative proceeding, 25 VerDate Sep 11 2014 05:06 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2139.IS S2139 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 2139 IS shall be governed by the provisions of section 413 of 1 the Controlled Substances Act (21 U.S.C. 853), ex- 2 cept subsection (d) of that section. 3 ‘‘(j) CIVIL FORFEITURE OF PROPERTY USED IN THE 4 COMMISSION OF AN OFFENSE.— 5 ‘‘(1) IN GENERAL.—Any personal property, in- 6 cluding any Internet domain name or Internet Pro- 7 tocol address, that was used or intended to be used 8 to commit or to facilitate the commission of any vio- 9 lation of this section, or a conspiracy to violate this 10 section shall be subject to forfeiture to the United 11 States, and no property right shall exist in such 12 property. 13 ‘‘(2) APPLICABLE PROVISIONS.—Seizur [Text truncated for display. Full text available on Congress.gov.]