Bill Text: MA H3075 | 2009-2010 | 186th General Court | Introduced
Bill Title: Broadband telecommunications security
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-08-04 - Accompanied a study order, see H04969 [H3075 Detail]
Download: Massachusetts-2009-H3075-Introduced.html
The Commonwealth of Massachusetts
_______________
PRESENTED BY:
James H. Fagan
_______________
To the
Honorable Senate and House of Representatives of the Commonwealth of
Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the passage of the accompanying bill:
An Act relative to broadband and telecommunications security.
_______________
PETITION OF:
|
Name: |
District/Address: |
|
James H. Fagan |
3rd Bristol |
[SIMILAR MATTER FILED IN PREVIOUS
SESSION
SEE HOUSE, NO. 3304 OF 2007-2008.]
The Commonwealth of
Massachusetts
_______________
In the Year Two Thousand and Nine
_______________
An Act relative to broadband and telecommunications security.
Be
it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 166: Section 42B. is hereby
amended as follows:
Unlawful telecommunication and access devices; offenses; definitions;
penalties; civil remedies.
(a) Offense defined.—Any person commits an offense if he:
(1) possesses, uses, manufactures, assembles, distributes, transfers, sells or
offers, promotes or advertises for sale, use car distribution any unlawful
telecommunication device, or modifies, alters, programs or reprograms a
telecommunication device:
(i) for the commission of a theft of telecommunication service or to receive,
disrupt, transmit, decrypt, acquire or facilitate the receipt, disruption,
transmission, decryption or acquisition of any telecommunication service
without the express consent or express authorization of the telecommunication
service provider; or
(ii) to conceal or to assist another to conceal from any telecommunication
service provider, or from any lawful authority, the existence or place of
origin or destination of any telecommunication; or
(2) possesses, uses, manufactures, assembles, distributes, transfers, sells,
offers, promotes or advertises for sale, use or distribution any unlawful
access device; or
(3) possesses, uses, prepares, distributes, sells, gives, transfers or offers,
promotes, publishes or advertises for sale, use or distribution any:
(i) plans or instructions for making or assembling any unlawful
telecommunication or access device, under circumstances evidencing an intent to
use or employ such unlawful telecommunication or access device, or to allow the
same to be used or employed, for a purpose prohibited by this section, or
knowing or having reason to believe that the same is intended to be so used, or
that the aforesaid plans or instructions are intended to be used for
manufacturing or assembling such unlawful telecommunication or access device,
or
(ii) material including hardware, cables, tools, data, computer software or
other information or equipment, knowing that the purchaser or a third person
intends to use the material in the manufacture or assembly of an unlawful
telecommunication or access device.
(b) Criminal Penalties.—
(1) (Except for violations of this section as provided
for in paragraph (b)(2) or (b)(3), an offense under this section shall be
punished by a fine of not more than three thousand dollars or by imprisonment
in a jail or house of correction for not more than two and one half years or
both.
(2) An offense under this section shall be punished by a fine of not more than
ten thousand dollars and imprisonment in the state prison for not more than ten
years, if:
(i) the defendant has been convicted previously under this section or convicted
of any similar crime in this or any Federal or other state jurisdiction; or
(ii) the violation of this section involves at least 5, but not more than 50,
unlawful telecommunication or access devices.
(3) An offense under this section shall be punished by a fine of not more than
thirty thousand dollars and imprisonment in the state prison for not more than
fifteen years. if:
(i) the defendant has been convicted previously on two or more occasions for
offenses under this section or for any similar crime in this or any Federal or
other state jurisdiction, or
(ii) the violation of this section involves more than 50 unlawful
telecommunication or access devices.
(4) For purposes of grading an offense based upon a prior conviction under this
section or for any similar crime pursuant to paragraphs (b)(2)(i) and
(b)(3)(i), a prior conviction shall consist of convictions upon separate
indictments or criminal complaints for offenses under this section or any
similar crime in this or any Federal or other state jurisdiction.
(5) As provided for in paragraphs (b)(2)(i) and (b)(3)(i), in grading an
offense under this section based upon a prior conviction, the term “any similar
crime” shall include, but not be limited to offenses involving theft of service
or fraud, including violation of the Cable Communications Policy Act of 1984
(Public Law 98-549, 98 Stat. 2779).
(6) Separate offenses.—For purposes of all criminal
penalties or fines established for violations of this section, the prohibited
activity established herein as it applies to each unlawful telecommunication or
access device shall be deemed a separate offense.
(7) Fines.—For purposes of imposing fines upon conviction of a defendant for an
offense under this section, all fines shall be imposed as authorized by law for
each unlawful telecommunication or access device involved in the violation of
this action.
(8) Restitution.—The court shall, after conviction, conduct an evidentiary
hearing to ascertain the extent of the damages or financial loss suffered as a
result of the defendant’s crime. A person found guilty of violating this
section shall, in all cases, upon conviction, in addition to any other
punishment, be ordered to make restitution to the insurer for any financial
loss sustained as a result of the commission of the crime; provided, however,
that restitution shall not be ordered to a party whom the court determines to
be aggrieved without that party’s consent. Restitution shall be imposed in
addition to imprisonment and/or fine and not in lieu thereof, provided,
however, the court shall consider the defendant’s present and future ability to
pay in its determinations regarding a fine.
In determining the amount, time and method of payment of restitution, the court
shall consider the financial resources of the defendant and the burden
restitution will impose on the defendant. Upon a real or impending change in
financial circumstances, a defendant ordered to pay restitution may petition
the court for a modification of the amount, time or method payment of
restitution. If the court finds that because of any such change the payment of
restitution will impose an undue financial hardship on the defendant or his
family, the court may modify the amount, time or method of payment, but may not
grant complete remission from payment of restitution.
If a defendant who is required to make restitution
defaults in any payment of restitution or installment thereof, the court shall
hold him in contempt unless said defendant has made a good faith effort to pay
such restitution. If said defendant has made a good faith effort to pay such
restitution, the court may modify the amount, time or method of payment. but
may not grant complete remission for payment of restitution.
(9) Forfeiture of unlawful telecommunication or access devices.—
Any unlawful telecommunication or access devices or plans or instructions or
publications described in this section may be seized under warrant or incident
to a lawful arrest, and, upon the conviction of a person for a violation of
this section, such unlawful telecommunication or access devices or plans or
instructions or publications may be destroyed as contraband by the sheriff of
the county in which such person was convicted.
(c) Venue.—An offense or violation under this section may be deemed to have
been committed at either place where the defendant manufactures or assembles an
unlawful telecommunication or access device or assists others in doing so, or
the places where the unlawful telecommunication or access device is sold or
delivered to a purchaser or recipient. It shall be no defense to a violation of
this section that some of the acts constituting the violation occurred outside
of this Commonwealth.
(d) Civil actions.—
(1) Any person aggrieved by a violation of this section or Chapter 166, section
42A may bring a civil action in any court of competent jurisdiction.
(2) In any civil action brought for violations of this section or Chapter 166,
section 42A, the court may:
(i) grant preliminary and final injunctions to prevent or restrain violation of
this section;
(ii) at any time while an action is pending, order the
impounding, on such terms as it deems reasonable, of any unlawful
telecommunication or access device that is in the custody or control of the
violator and that the court has reasonable cause to believe was involved in the
alleged violation of this section or Chapter 166, section 42A;
(iii) award damages as described in subsection (3) below;
(iv) in its discretion, award reasonable attorney fees and costs, including,
but not limited to, costs for investigation, testing and expert witness fees,
to an aggrieved party who prevails; and
(v) as part of a final judgment or decree finding a violation of this section,
order the remedial modification or destruction of any unlawful
telecommunication or access device, or any other devices or equipment involved
in the violation, that is in the custody or control of the violator, or has
been impounded under subparagraph (ii) above.
(3) Types of damages recoverable.—Damages awarded by a court for violations of
this section or Chapter 166, section 42A shall be computed as either of the
following:
(i) Upon his election of such damages at any time before final judgment is
entered, the complaining party may recover the actual damages suffered by him
as a result of the violation and any profits of the violator that are
attributable to the violation and are not taken into account in computing the
actual damages. In determining the violator’s profits, the complaining party
shall be required to prove only the violator’s gross revenue, and the violator
shall be required to prove his deductible expenses and the elements of profit
attributable to factors other than the violation.
(ii) Upon election by the complaining party at any
time before final judgment is entered, that party may recover in lieu of actual
damages an award of statutory damages of between $250 to $10,000 for each
violation involved in the action. In all cases, the amount of statutory damages
is to be determined by the court, not the jury, as the court considers just. In
any case where the court finds that any of the violations of this section or
Chapter 166, section 42A were committed willfully and for purposes of
commercial advantage or private financial gain, the court in its discretion may
increase the award of statutory damages by an amount of not more than $50,000
for each violation involved in the action. Each unlawful telecommunication or
access device involved in the action shall be deemed a separate violation and
shall entitle the complaining party to a separate award of statutory damages
for each such device.
(4) For purposes of all civil remedies established for violations of this
section or Chapter 166, section 42A, the prohibited activity applies to each
unlawful telecommunication or access device and shall be deemed a separate
violation.
(e) Definitions.—As used in this section, the following words and phrases shall
have, the following meanings:—
(1) “Manufacture of assembly of an unlawful telecommunication device.” To make,
produce or assemble an unlawful telecommunication device or to modify, alter,
program or reprogram a telecommunication device to be capable of acquiring,
disrupting, receiving, transmitting, decrypting or facilitating the
acquisition, disruption, receipt, transmission or decryption of a
telecommunication service without the express consent or express authorization
of the telecommunication service provider, or to knowingly assist others in
those activities.
(2) “Telecommunication device.” Any type of instrument, device, machine,
equipment, technology or software which is capable of transmitting, acquiring,
decrypting or receiving any telephonic, electronic, data, Internet access,
audio, video, microwave or radio transmissions, signals, communications or
services, including the receipt, acquisition, transmission or decryption of all
such communications, transmissions, signals or services provided by or through
any cable television, fiber optic, telephone, satellite, microwave, data
transmission, radio, Internet-based or wireless distribution network, system or
facility; or any part, accessory or components thereof, including any computer
circuit, security module, smart card, software, computer chip, electronic
mechanism or other component, accessory or part of any telecommunication device
which is capable of facilitating the transmission, decryption, acquisition or
reception of any such communications, transmissions, signals or services.
(3) “Telecommunication service.” Any service provided
for a charge or compensation to facilitate the origination, transmission,
emission or reception of signs, signals, data, writings, images and sounds or
intelligence of any nature by telephone, including cellular telephones, wire,
wireless, radio, electromagnetic, photoelectronic or photo-optical systems, and
any service provided by any radio, telephone, fiber optic, cable television,
satellite, microwave, data transmission, wireless or Internet-based
distribution system, network, facility or technology, including, but not
limited to, any and all electronic, data, video, audio, Internet access,
telephonic, microwave and radio communications, transmissions, signals and
services, and any such communications, transmissions, signals and services
provided directly or indirectly by or through any of the aforementioned
systems, networks, facilities or technologies.
(4) “Telecommunication service provider.” 1) Any person or entity providing a
telecommunication service, whether directly or indirectly as a reseller,
including, but not limited to, a cellular, paging or other wireless
communications company or other person or entity which, for a fee supplies the
facility, cell site, mobile telephone switching office or other equipment or telecommunication
service; 2) any person or entity owning or operating any fiber optic, cable
television, satellite, Internet based, telephone, wireless, microwave, data
transmission or radio distribution system network or facility; and 3) any
person or entity providing any telecommunication service directly or indirectly
by or through any such distribution systems, networks or facilities.
(5) “Unlawful telecommunication device.” Any electronic serial number, mobile
identification number, personal identification number or any unauthorized
receipt, acquisition, access, decryption, disclosure, communication
transmission or re-transmission, or to knowingly assist others in those
activities.
