HR 3278 Introduced – Protecting Critical Infrastructure Act

Last month Rep Fallon (R,TX) introduced HR 3278, the Protecting Critical Infrastructure Act. The bill would amend 18 USC 1030 providing enhanced penalties for offenses involving critical infrastructure. It would also require the President to impose sanctions on foreign persons that knowingly accesses or attempts to access critical infrastructure. No new funding is provided in the bill.

Definitions

Section 3(f) provides the definitions of seven key terms used in §3. No technical terms are provided in that subsection.

There are two places {§2(2) and §3(a)} where identical definitions of the term ‘critical infrastructure’ are provided. Both definitions rely on the existing definition at 42 USC 5195c(e).

Enhanced Penalties

Section 2 of the bill would amend §1030(c) by adding a new paragraph (5) that would add a new penalty of “imprisonment for not less than 30 years or for life” for any offense involving critical infrastructure. This section uses the broadly defined definition of ‘critical infrastructure’ from §5195c, but does not specify what level of ‘incapacity or destruction’ to critical infrastructure would need to be involved to invoke this new penalty. The proposed additions do not even contain the commonly used phrase in subsection (c), “which does not occur after a conviction for another offense under this section” to limit the application of the new penalty, so even a minor, first-time offense that did not materially affect national security or public safety would draw the 30-year prison sentence. There is not even a requirement that the perpetrator knew or should have known that the computer being accessed was part of critical infrastructure.

Presidential Sanctions

Section 3 would require the President to impose sanctions on any foreign person that “knowingly accesses or attempts to access critical infrastructure” for the purposes of harming:

The national security or defense of the United States, or

The safety and security of any United States citizen or alien lawfully admitted for permanent residence.

Subsection (b) would require the following sanctions to be applied:

Asset blocking, and

Inadmissibility of certain individuals,

The President would be required to implement regulations to implement the requirements of §3.

Moving Forward

Neither Fallon, nor his three cosponsors are members of the House Judiciary Committee to which tis bill was assigned for primary consideration. The three cosponsors are all members of the House Foreign Affairs Committee to which the bill was assigned for secondary consideration. This means that there will probably not be sufficient influence to see the bill considered in the Judiciary, but there may be sufficient influence to be considered in the Foreign Affairs Committee.

As written, I do not think that the bill would have sufficient support in the Judiciary Committee to be approved if it were considered. The bill would need substantial revision of the §1030 amendment, including qualifying and limiting language like that found in the existing paragraphs of §1030(c). I would expect that there would be some opposition from Democrats based upon the history of the early application of §1030, so there would probably not be sufficient bipartisan support to see the bill considered in the full House under the suspension of the rules process.