Defense attorneys say the new threat of life imprisonment for hackers who try to "cause death" by computer will be used to squeeze quick guilty pleas from even non-lethal cyberpunks.
A genuine cyber murder may never happen outside the pages of tabloid newspapers and Tom Clancy novels, but defense attorneys say that won't keep federal prosecutors from getting some mileage out of a provision in the newly-passed Homeland Security bill that dictates a maximum sentence of life imprisonment without parole for computer hackers with homicide in their hearts.
One of many information security and cybercrime measures in the 484-page bill -- which won final approval in the Senate Tuesday -- the life sentence is reserved for those who deliberately transmit a program, information, code, or command that impairs the performance of a computer or modifies its data without authorization, "if the offender knowingly or recklessly causes or attempts to cause death."
If the attacker only causes or attempts to cause bodily injury through hacking, the crime carries a 20-year sentence.
While it sounds straightforward enough, defense attorneys who've worked on significant hacking cases worry that many aspects of computer crime law remain too unclear to provide a sound anchor for as weighty a sentence as life imprisonment, and they say the new provisions add more confusion to a still-evolving area of law.
"You can drive a truck through the ambiguities in that language," says Donald Randolph, the Los Angeles criminal defense attorney who represented hacker Kevin Mitnick. "It's a daunting prospect to address this when you have words like 'attempts to cause' and 'recklessly.' I could see prosecutors arguing that the term 'reckless' defines every instance of hacking."
"While it's completely understandable that society would want to impose a life sentence for any kind of murder... what we've done is attached that idea to the underlying vagueness of the anti-hacking law, and there are a lot of things that are not clear in the law and not clear in the statute," says Jennifer Granick, director of Stanford Law School's Center for Internet and Society, and defense attorney in several federal hacker cases. "Technology is progressing so rapidly... to attach a life sentence to an area of the law that is still in the earliest stages of the development is dangerous."
Notwithstanding apocryphal reports of hackers changing blood types at a New York hospital, or a twelve-year-old boy coming within keystrokes of opening the floodgates at an Arizona damn, no cases of attempted cyber murder or cyber terrorism have been reliably reported. But the defense lawyers believe that the new law -- or the threat of it -- will play a significant role in conventional, non-lethal, hacker cases.
"I'll be used to get guilty pleas," says Granick. "People will be afraid that they're going to get the life sentence so they'll take a deal for less than life, and give up their right to appeal and to test the law."
Other legal experts disagree. "I doubt it," 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. Kerr believes prosecutors won't use the attempted murder language to squeeze guilty pleas out of hackers, and says the new provision will most likely gather dust -- an unused and overlooked curiosity in the law books.
"The practical effect of this is almost none," says Kerr. "It's probably mostly symbolic -- perhaps useful in a case of a terrorist act of computer hacking designed to cause a lot of deaths, in which case it would give the federal government jurisdiction."
"Forgive me for being pessimistic after 28 years as a criminal defense attorney... but I would say it will absolutely, positively be used to compel plea bargains," counters Randolph. "That's the name of the game in 90% of the prosecutions I'm involved in."