18 U.S.C. § 1038 — False information and hoaxes

Page 329 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1038 (F) the offense was undertaken by the de- fendant in concert with three or more other persons with respect to whom the defendant occupied a position of organizer or leader; and (3) a fine under this title or imprisonment for not more than 1 year, or both, in any other case. (c) FORFEITURE.— (1) IN GENERAL.—The court, in imposing sen- tence on a person who is convicted of an of- fense under this section, shall order that the defendant forfeit to the United States— (A) any property, real or personal, consti- tuting or traceable to gross proceeds ob- tained from such offense; and (B) any equipment, software, or other technology used or intended to be used to commit or to facilitate the commission of such offense. (2) PROCEDURES.—The procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C. 853), other than subsection (d) of that section, and in Rule 32.2 of the Federal Rules of Criminal Procedure, shall apply to all stages of a criminal forfeiture proceeding under this section. (d) DEFINITIONS.—In this section: (1) LOSS.—The term ‘‘loss’’ has the meaning given that term in section 1030(e) of this title. (2) MATERIALLY.—For purposes of paragraphs (3) and (4) of subsection (a), header informa- tion or registration information is materially falsified if it is altered or concealed in a man- ner that would impair the ability of a recipi- ent of the message, an Internet access service processing the message on behalf of a recipi- ent, a person alleging a violation of this sec- tion, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation. (3) MULTIPLE.—The term ‘‘multiple’’ means more than 100 electronic mail messages during a 24-hour period, more than 1,000 electronic mail messages during a 30-day period, or more than 10,000 electronic mail messages during a 1-year period. (4) OTHER TERMS.—Any other term has the meaning given that term by section 3 of the CAN-SPAM Act of 2003. (Added Pub. L. 108–187, § 4(a)(1), Dec. 16, 2003, 117 Stat. 2703.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (c)(2), are set out in the Appendix to this title. Section 3 of the CAN-SPAM Act of 2003, referred to in subsec. (d)(4), is classified to section 7702 of Title 15, Commerce and Trade. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 2004, see section 16 of Pub. L. 108–187, set out as a note under section 7701 of Title 15, Commerce and Trade. § 1038. False information and hoaxes (a) CRIMINAL VIOLATION.— (1) IN GENERAL.—Whoever engages in any conduct with intent to convey false or mis- leading information under circumstances where such information may reasonably be be- lieved and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the sec- ond sentence of section 46504, section 46505(b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49, shall— (A) be fined under this title or imprisoned not more than 5 years, or both; (B) if serious bodily injury results, be fined under this title or imprisoned not more than 20 years, or both; and (C) if death results, be fined under this title or imprisoned for any number of years up to life, or both. (2) ARMED FORCES.—Any person who makes a false statement, with intent to convey false or misleading information, about the death, in- jury, capture, or disappearance of a member of the Armed Forces of the United States during a war or armed conflict in which the United States is engaged— (A) shall be fined under this title, impris- oned not more than 5 years, or both; (B) if serious bodily injury results, shall be fined under this title, imprisoned not more than 20 years, or both; and (C) if death results, shall be fined under this title, imprisoned for any number of years or for life, or both. (b) CIVIL ACTION.—Whoever engages in any conduct with intent to convey false or mis- leading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505 (b)(3) or (c), section 46506 if homicide or attempted homicide is in- volved, or section 60123(b) of title 49 is liable in a civil action to any party incurring expenses incident to any emergency or investigative re- sponse to that conduct, for those expenses. (c) REIMBURSEMENT.— (1) IN GENERAL.—The court, in imposing a sentence on a defendant who has been con- victed of an offense under subsection (a), shall order the defendant to reimburse any state or local government, or private not-for-profit or- ganization that provides fire or rescue service incurring expenses incident to any emergency or investigative response to that conduct, for those expenses. (2) LIABILITY.—A person ordered to make re- imbursement under this subsection shall be jointly and severally liable for such expenses with each other person, if any, who is ordered to make reimbursement under this subsection for the same expenses. Page 330 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 1039 (3) CIVIL JUDGMENT.—An order of reimburse- ment under this subsection shall, for the pur- poses of enforcement, be treated as a civil judgment. (d) ACTIVITIES OF LAW ENFORCEMENT.—This section does not prohibit any lawfully author- ized investigative, protective, or intelligence ac- tivity of a law enforcement agency of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States. (Added Pub. L. 108–458, title VI, § 6702(a), Dec. 17, 2004, 118 Stat. 3764.) § 1039. Fraud and related activity in connection with obtaining confidential phone records information of a covered entity (a) CRIMINAL VIOLATION.—Whoever, in inter- state or foreign commerce, knowingly and in- tentionally obtains, or attempts to obtain, con- fidential phone records information of a covered entity, by— (1) making false or fraudulent statements or representations to an employee of a covered entity; (2) making such false or fraudulent state- ments or representations to a customer of a covered entity; (3) providing a document to a covered entity knowing that such document is false or fraud- ulent; or (4) accessing customer accounts of a covered entity via the Internet, or by means of con- duct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records in- formation relates; shall be fined under this title, imprisoned for not more than 10 years, or both. (b) PROHIBITION ON SALE OR TRANSFER OF CON- FIDENTIAL PHONE RECORDS INFORMATION.— (1) Except as otherwise permitted by appli- cable law, whoever, in interstate or foreign commerce, knowingly and intentionally sells or transfers, or attempts to sell or transfer, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both. (2) For purposes of this subsection, the ex- ceptions specified in section 222(d) of the Com- munications Act of 1934 shall apply for the use of confidential phone records information by any covered entity, as defined in subsection (h). (c) PROHIBITION ON PURCHASE OR RECEIPT OF CONFIDENTIAL PHONE RECORDS INFORMATION.— (1) Except as otherwise permitted by appli- cable law, whoever, in interstate or foreign commerce, knowingly and intentionally pur- chases or receives, or attempts to purchase or receive, confidential phone records informa- tion of a covered entity, without prior author- ization from the customer to whom such con- fidential phone records information relates, or knowing or having reason to know such infor- mation was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both. (2) For purposes of this subsection, the ex- ceptions specified in section 222(d) of the Com- munications Act of 1934 shall apply for the use of confidential phone records information by any covered entity, as defined in subsection (h). (d) ENHANCED PENALTIES FOR AGGRAVATED CASES.—Whoever violates, or attempts to vio- late, subsection (a), (b), or (c) while violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000, or more than 50 customers of a covered entity, in a 12-month period shall, in ad- dition to the penalties provided for in such sub- section, be fined twice the amount provided in subsection (b)(3) or (c)(3) (as the case may be) of section 3571 of this title, imprisoned for not more than 5 years, or both. (e) ENHANCED PENALTIES FOR USE OF INFORMA- TION IN FURTHERANCE OF CERTAIN CRIMINAL OF- FENSES.— (1) Whoever, violates, or attempts to violate, subsection (a), (b), or (c) knowing that such in- formation may be used in furtherance of, or with the intent to commit, an offense de- scribed in section 2261, 2261A, 2262, or any other crime of violence shall, in addition to the penalties provided for in such subsection, be fined under this title and imprisoned not more than 5 years. (2) Whoever, violates, or attempts to violate, subsection (a), (b), or (c) knowing that such in- formation may be used in furtherance of, or with the intent to commit, an offense under section 111, 115, 1114, 1503, 1512, 1513, or to in- timidate, threaten, harass, injure, or kill any Federal, State, or local law enforcement offi- cer shall, in addition to the penalties provided for in such subsection, be fined under this title and imprisoned not more than 5 years. (f) EXTRATERRITORIAL JURISDICTION.—There is extraterritorial jurisdiction over an offense under this section. (g) NONAPPLICABILITY TO LAW ENFORCEMENT AGENCIES.—This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agen- cy of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States. (h) DEFINITIONS.—In this section: (1) CONFIDENTIAL PHONE RECORDS INFORMA- TION.—The term ‘‘confidential phone records information’’ means information that— (A) relates to the quantity, technical con- figuration, type, destination, location, or amount of use of a service offered by a cov- ered entity, subscribed to by any customer of that covered entity, and kept by or on be- half of that covered entity solely by virtue of the relationship between that covered en- tity and the customer; (B) is made available to a covered entity by a customer solely by virtue of the rela- tionship between that covered entity and the customer; or