CHAPTER 438

FORMERLY

SENATE BILL NO. 492

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO COMPUTER OFFENSES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 11 of the Delaware Code by adding thereto a new Subpart K of Subchapter III, Chapter 5, to read as follows:

"Subpart K. Computer Related Offenses

§931. Definitions

As used in this subpart:

'Access' means to instruct, communicate with, store data in or retrieve data from a computer, computer system or computer network.

'Computer' means a programmable, electronic device capable of accepting and processing data.

'Computer network' means (A) a set of related devices connected to a computer by communications facilities, or (B) a complex of two or more computers, including related devices, connected by communications facilities, or (C) the communications transmission facilities and devices used to interconnect computational equipment, along with control mechanisms associated thereto.

'Computer program' means a set of instructions, statements or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions.

'Computer services' includes, but is not limited to, computer access, data processing and data storage.

'Computer software' means one or more computer programs, existing in any form, or any associated operational procedures, manuals or other documentation.

'Computer system' means a computer, its software, related equipment, communications facilities, if any, and includes computer networks.

'Data' means informatioin of any kind in any form, including computer software.

'Person' means a natural person, corporation, trust, partnership, incorporated or unincorporated association and any other legal or governmental entity, including any state or municipal entity or public official.

'Private personal data' means data concerning a natural person which a reasonable person would want to keep private and which is protectable under law.

'Property' means anything of value, including data.

§932. Unauthorized Access

A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization.

§933. Theft of Computer Services

A person is guilty of the computer crime of theft of computer services when he accesses or causes to be accessed or otherwise uses or causes to be used a computer system with the intent to obtain unauthorized computer services, computer software or data.

§934. Interruption of Computer Services

A person is guilty of the computer crime of interruption of computer services when that person, without authorization, intentinally or recklessly disrupts or degrades or causes the disruption or degradation of computer services or denies or causes the denial of computer services to an authorized user of a computer system.

§935. Misuse of Computer System Information

A person is guilty of the computer crime of misuse of computer system information when:

(1) As a result of his accessing or causing to be accessed a computer system, he intentionally makes or causes to be made an unauthorized display, use, disclosure or copy, in any form, of data residing in, communicated by or produced by a computer system; or

(2) that person intentionally or recklessly and without authorization: alters, deletes, tampers with, damages, destroys or takes data intended for use by a computer system, whether residing within or external to a computer system; or interupts or adds data to data residing within a computer system; or

(3) that person knowingly receives or retains data obtained in violation of subdivision (1) or (2) of this subsection; or

(4) that person uses or discloses any data which that person knows or believes was obtained in violation of subdivision (1) or (2) of this subsection.

§936. Destruction of Computer Equipment

A person is guilty of the computer crime of destruction of computer equipment when that person, without authorization, intentionally or recklessly tampers with, takes, transfers, conceals. alters, damages or destroys any equipment used in a computer system or intentionally or recklessly causes any of the foregoing to occur.

§937. Penalties

(a) A person committing any of the crimes described in §932 through §936 of this subchapter is guilty in the first degree when the damage to or the value of the property or computer services affected exceeds ten thousand dollars.

Computer crime in the first degree is a Class B Felony.

(b) A person committing any of the crimes described in §932 through §936 of this subchapter is guilty in the second degree when the damage to or the value of the property or computer services affected exceeds five thousand dollars.

Computer crime in the second degree is a Class C Felony.

(c) A person committing any of the crimes described in §932 through §936 of this subchapter in guilty in the third degree when:

the damage to or the value of the property or computer services affected exceeds one thousand dollars; or that person engages in conduct which creates a risk of serious physical injury to another person.

Computer crime in the third degree is a Class D Felony.

(d) A person committing any of the crimes described in §932 through §936 of this subchapter is guilty in the fourth degree when the damage to or the value of the property or computer services affected exceeds five hundred dollars.

Computer crime in the fourth degree is a Class A misdemeanor.

(e) A person committing any of the crimes described in §932 through §936 of this subchapter is guilty In the fifth degree when the damage to or the value of the property or computer services, if any, is five hundred dollars or less.

Computer crime in the fifth degree is a Class B. misdemeanor.

(f) Any person gaining money, property services, or other consideration through the commission of any offense under this subchapter, upon conviction, In lieu of having a fine imposed, may be sentenced by the court to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain from the commission of such offense. In such case the court shall make a finding as to the amount of the defendant's gain from the offense and, if the record does not contain sufficient evidence to support such a finding, the court may conduct a hearing upon the issue. For the purpose of this section, "gain" means the amount of money or the value of property or computer services or other consideration derived.

Amounts included in violations of this subchapter committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the degree of the crime.

For the purposes of this act, the value of property or computer services shall be: (1) the market value of the property or computer services at the time of the violation; or (2) if the property or computer services are unrecoverable, damaged or destroyed as a result of a violation of this subchapter, the cost of reproducing or replacing the property or computer services at the time of the violation

When the value of the property or computer services or damage thereto cannot be satisfactorily ascertained, the value shall be deemed to be two hundred fifty dollars.

(I) Notwithstanding the provisions of this section, the value of private personal data shall be deemed to be five hundred dollars.

§938. Venue

In any prosecution for any violation of §932 through §936 of this Chapter, the offense shall be deemed to have been committed in the place at which the act occurred or in which the computer system or part thereof involved in the violation was located.

In any prosecution for any violation of §932 through §936 of this Chapter based upon more than one act in violation thereof, the offense shall be deemed to have been committed in any of the places at which any of the acts occurred or in which a computer system or part thereof involved in a violation was located.

If any act performed in furthermore of the offenses set out in §932 through §936 of this chapter occurs in this state or in any computer system or part thereof accessed in violation of §932 through §936 of this chapter is located in this state, the offense shall be deemed to have occured in this state.

§939. Additional Remedies

Any aggrieved person who has reason to believe that any other person has been engaged, is engaged or is about to engage in an alleged violation of any provision of §932 through §936 of this chapter may bring en action against such person and may apply to the Court of Chancery for: (1) An order temporarily or permanently restraining and enjoining the commencement or continuance of such act or acts; (2) an order directing restitution; or (3) an order directing the appointment of a receiver. Subject to making due provisions for the rights of innocent persons, a receiver shall have the power to sue for, collect, receive and take into his possession any property which belongs to the person who is alleged to have violated any provision of this Chapter and which may have been derived by, been used in or aided in any manner such alleged violation. Such property shall include goods and chattels, rights and credits, moneys and effects, books, records, documents, papers, choses in action, bills. notes and property of every description including all computer system equipment and data, and including property with which such property has been commingled if it cannot be identified in kind because of such commingling. The receiver shall also have the power to sell, convey and assign all of the foregoing and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of an alleged violation of any provision of §932 through §936 of this Chapter, and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.

The court may award the relief applies for or such other relief as it may deem appropriate in equity.

Independent of or in conjunction with an action under subsection (a) of this section, any person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of §932 through §936 of this Chapter. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss, and treble damages where there has been a showing of wilful and malicious conduct.

Proof of pecuniary loss is not required to establish actual damages in connection with an alleged violation of §935 of this Chapter arising from misuse of private personal data.

In any civil action brought under this section, the court shall award to any aggrieved person who prevails, reasonable costs and reasonable attorney's fees.

The filing of a criminal action against a person is not a prerequisite to the bringing of a civil action under this section against such person.

No civil action under this section may be brought but within three years from the date the alleged violation of §932 through §936 of this Chapter is discovered or should have been discovered by the exercise of reasonable diligence.

Section 2. Amend Title 11 of the Delaware Code by striking §858 in its entirety.

Approved July 20, 1984.