9-50.101
United States Attorneys
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responsibility for implementing the CHIP program. These
responsibilities include implementing the Department's cyber and
intellectual property crime strategies; ensuring that experienced
and technically- qualified Assistant United States Attorneys
(AUSAs) serve as the district's CHIP prosecutors; ensuring that
full time equivalent (FTE) CHIP resources are dedicated to CHIP
program objectives; ensuring that the USAO notifies, consults and
coordinates with CCIPS and other USAOs in accordance with section
9-50.400; and promoting and ensuring
effective interaction with law enforcement, industry
representatives, and the public in matters relating to computer and
intellectual property crime. The United States Attorney should also
ensure that each CHIP AUSA attends relevant training sponsored by
the EOUSA's Office of Legal Education (OLE), and in turn trains and
advises prosecutors within the district.
[new January 2007]
9-50.102
CHIP Coordinators and CHIP Unit AUSAS
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The CHIP Coordinators and CHIP Unit AUSAs
(collectively CHIP AUSAs) in each district have four program
responsibilities:
- to prosecute computer crime and intellectual property
offenses;
- to serve as the district's legal counsel on matters relating
to those offenses, and the collection of electronic or digital
evidence;
- to train prosecutors and law enforcement personnel in the
region; and
- to conduct public and industry outreach and awareness
activities.
The CHIP AUSAs should also ensure that the USAO notifies and
coordinates with other USAOs and CCIPS as described in section
9-50.400.
The specific role of CHIP AUSAs in each of the districts will
depend on a variety of factors, including the size of the district,
whether it has a CHIP Unit or other dedicated CHIP FTE, the number
of cyber and intellectual property cases referred, and the
particular crime problems within the district. Funded CHIP Unit
AUSAs and CHIP Coordinators should focus on the core offenses set
forth below. While the United States Attorney retains the
discretion to determine how these various roles and functions are
carried out, it is essential that all of the CHIP resources are
managed appropriately. Moreover, CHIP Units and funded CHIP AUSA
positions will be evaluated based on their prosecution of the core
offenses set forth in section 9-50.201.
CHIP AUSAs also must serve as the primary points-of-contact for
all of the district's law enforcement activities regarding computer
crime and intellectual property, including the investigation and
prosecution of the district's CHIP cases with a particular emphasis
on the core offenses.
[new January 2007]
9-50.103
Computer Crime & Intellectual Property Section
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The Computer Crime &
Intellectual Property Section (CCIPS) has primary responsibility
for developing the Department's overall computer and intellectual
property offense enforcement strategies, for providing programmatic
support to the CHIP Network, and for coordinating computer crime
and intellectual property investigations and cases that may
significantly impact more than one district and/or other countries.
In addition to developing and prosecuting their own cases and
assisting CHIP prosecutors in cases on request, CCIPS supports the
CHIP Network by serving as a source and conduit for information
through CHIP Net, a website of resource materials; providing
information on cases and current events to the CHIP AUSAs through
the distribution of the daily news briefings; providing legal
expertise through the distribution of manuals, monographs, case
summaries, and legislative analysis; and developing and
implementing training programs for CHIP and other prosecutors in
conjunction with OLE.
[new January 2007]
9-50.104
Executive Office for United States Attorneys
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EOUSA has primary responsibility for
administering the budget for CHIP activities in the USAOs; funding
and facilitating training for CHIP prosecutors through OLE;
evaluating the CHIP program in the USAOs through its Evaluation and
Review Staff (EARS); and providing personnel and facilities support
for USAOs that includes CHIP activities. EOUSA's contact for the
CHIP Network serves on the Cyber and Intellectual Property Crime
Subcommittee of the Attorney General's Advisory Committee and
assists the Subcommittee by providing legal and administrative
support; works with CCIPS to develop and facilitate training at the
National Advocacy Center for CHIP and other prosecutors; and works
with CCIPS to review evaluations of the CHIP program and provide
additional guidance or assistance as needed to the districts.
[new January 2007]
9-50.200
Specific CHIP Program Responsibilities
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While it is essential to allow each USAO
the flexibility to implement its CHIP program to best meet the
needs of its district, it is also important to ensure that USAOs
are provided the necessary guidance and information to ensure that
each CHIP program is operating consistently with the Department's
policies and strategies on the enforcement of intellectual property
laws and the pursuit of cyber criminals.
[new January 2007]
9-50.201
Prosecution of Core Offenses
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The first responsibility of CHIP AUSAs is to
prosecute computer crime and intellectual property offenses. Those
include:
- Violations of the Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030;
- Telecommunication fraud in violation of the access device
statute, 18 U.S.C. §§ 1029(a)(7), (8), or (9);
- CAN-SPAM Act violations, 18 U.S.C. § 1037;
- Illegal interception of electronic communications in violation
of Title III of the Omnibus Safe Streets and Crime Control Act, 18
U.S.C. § 2511;
- Unlawful access to stored communications under the Electronic
Communications Privacy Act, 18 U.S.C. § 2701;
- Criminal copyright infringement, 18 U.S.C. §
2319;
- Trademark (counterfeit product) offenses, 18 U.S.C. §
2320;
- Circumvention of copyright control systems in violation of the
Digital Millennium Copyright Act, 12 U.S.C. §§
1201-1204;
- Satellite signal piracy, 47 U.S.C. §§ 553 and
605;
- Economic espionage and theft of trade secrets in violation of
18 U.S.C. §§ 1831 and 1832;
- Counterfeit labeling offenses, 18 U.S.C. § 2318;
- Live music infringement, 18 U.S.C. § 2319A;
- Unauthorized recording of motion pictures, 18 U.S.C. §
2319B; and
- Counterfeit drug offenses in violation of the Food, Drug and
Cosmetic Act, 21 U.S.C. § 331(I).
It is important that CHIP AUSAs use the core set of
intellectual property statutes to combat the burgeoning trade in
counterfeit and infringing goods and digital property. When
possible, AUSAs should both charge and seek convictions for readily
provable violations of the above-listed intellectual property
statutes. This will have the additional benefit of allowing the
Department to better track intellectual property prosecutions and
report the Department's achievements to Congress as required by 18
U.S.C. § 2320(f).
[new January 2007]
[cited in
USAM 9-50.102]
9-50.202
Protecting the Public
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When determining which violations of the core CHIP
statutes to pursue, USAOs should give first priority to crimes that
endanger the health and safety of the public. Trafficking in
counterfeit drugs, defective counterfeit electrical devices, or
counterfeit automobile brake parts are examples of trademark
offenses that pose a health and safety risk. A denial-of-service or
other attack on a hospital's computer network is an example of a
computer crime with serious public health implications.
[new January 2007]
9-50.203
Core Offense Targets
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CHIP and non-CHIP AUSAs should continue their
efforts to pursue large, complex organized crime groups, including
those operating in multiple countries. CHIP AUSAs should especially
take steps to determine whether the computer crime and intellectual
property offenses under investigation are being committed to fund
or otherwise support terrorist activities.
[new January 2007]
9-50.300
Application of Resources
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Although all USAOs are generally expected to
devote resources to CHIP program objectives, those districts that
have received FTE funding for either CHIP Unit personnel or a CHIP
Coordinator should utilize those resources consistent with the
program objectives described above. This principle also applies to
AUSAs assigned to a CHIP Unit as part of matching resources
committed by the USAO when it received additional funding for the
unit. The creation of "Intellectual Property" and "Computer Crime"
case categories in Form USA-5 should enable USAOs to accurately
record program work. In addition, the use of performance work
elements that reflect non-case related work, such as outreach and
training, should encourage such work by CHIP AUSAs and provide an
opportunity for them to track and quantify the work not otherwise
reflected in case statistics.
The proper application of dedicated CHIP resources will be the
subject of review by EOUSA's Evaluation and Review Staff (EARS). In
addition, the annual collection of intellectual property
prosecution statistics is required by statute, and those statistics
will be reviewed along with EARS reports and other available
information by the Office of the Deputy Attorney General, in order
to determine whether dedicated FTE resources are being effectively
used and appropriately allocated.
[new January 2007]
9-50.400
Coordination and Notification
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The CHIP Network (CCIPS, CHIP Unit AUSAs and
CHIP Coordinators) will work together to ensure that computer and
intellectual property criminal statutes are vigorously enforced
throughout the nation. CHIP Network prosecutors should work with
each other and law enforcement agencies to share information and
reduce conflicts whenever possible.
To reduce conflicts whenever possible, CHIP Network prosecutors
should notify CCIPS or other USAOs in certain multi-district,
nationwide, and international investigations as set forth below:
- CCIPS Investigations—Prior to initiating any
activity related to an investigation or prosecution in any
district, CCIPS should notify the CHIP AUSA for that district.
- Multi-District Investigations—USAOs should notify
CCIPS, and the CHIP AUSAs of the affected districts, of
multi-district investigations. "Multi-district investigations" are
those in which there is a significant or substantial connection
to more than one district.
- Example: An investigation targeting a group
suspected of operating a computer server for the distribution of
pirated software would be considered to be multi-district in nature
if any of the targets or computer servers are located in more than
one district. However, the fact that other individuals may have
downloaded the software in another district would not be considered
to cause "significant impact" or to result in a "substantial
connection" to the district.
- Example: If a hacker were to use an Internet Service
Provider in another district or counterfeit goods were transhipped
through another district, these are not instances that would have
a significant or substantial connection to the other
district.
- Nationwide Investigations—USAOs should notify
CCIPS of nationwide investigations. CCIPS in turn will notify
districts in which defendants are located or otherwise have a
significant or substantial connection to the case. "Nationwide
investigations" are those that will likely have a significant or
substantial impact in all or most of the districts in the United
States.
- Examples: A creator of a virus that spreads
to thousands of computer networks, causing extensive damage in
nearly every district, would be the target of a nationwide
investigation. A data theft of personal financial information for
millions of consumers would be a nationwide investigation.
- International Investigations—USAOs should notify
CCIPS as early as possible in the investigative stage and prior to
the charging decision in international investigations.
"International investigations" are those in which one or more
targets are located in a foreign country.
- Decision Not to Pursue Target—In international
investigations with significant foreign targets, USAOs should
notify CCIPS whether the USAO intends to prosecute. For example,
the USAO may choose not to pursue a counterfeit goods manufacturer
who is in a country that will not extradite to the U.S., but CCIPS
should nonetheless be notified in order to take steps to determine
whether the country would pursue the offender independently. CCIPS
will in turn notify the USAO prior to making any disclosure to
foreign law enforcement to preclude an adverse impact on the
domestic investigation.
- Significant Judicial Decisions—USAOs should
inform CCIPS of significant investigations and prosecutions and any
significant judicial decisions issued in such cases. For example,
USAOs should send a copy of Urgent Reports (emailed to EOUSA) in
cases falling within the CHIP Network's subject matter
responsibility. CCIPS should in turn apprise the CHIP Network of
significant case events and decisions through its established
methods of communication.
[new January 2007]
[cited in
USAM 9-50.101;
USAM 9-50.102]
9-50.500
International Investigations
|
We cannot adequately protect our nation's
intellectual property without effective international enforcement.
Geographic borders pose little impediment to cyber criminals. CHIP
AUSAs working on investigations that identify foreign targets or
victims should, where appropriate, utilize all available tools and
law enforcement channels—including federal investigative
agencies' foreign legal attaches and attaches stationed in-
country—to establish channels of communication with our
foreign counterparts. Unlike formal methods of obtaining
information, such as through Mutual Legal Assistance Treaties,
informal evidence-sharing is often more efficient, and sometimes
essential, in fast-breaking investigations.
CHIP AUSAs should also seek to invest foreign law enforcement
with a stronger stake in the case by encouraging joint
investigations and the prosecution of appropriate foreign targets
within their own respective countries. This approach has proved
successful in obtaining greater cooperation and information sharing
in recent international investigations. CCIPS can be a highly
useful resource for CHIP prosecutors when pursuing international
leads and encouraging foreign enforcement of intellectual property
and cybercrime laws. They have experience with such cases, and they
have developed an extensive network of foreign law enforcement
contacts by working international cases, providing foreign training
and technical assistance, and leading such international
initiatives as the G8 "24/7" Network, a collection of 46 countries
committed to providing immediate assistance in cyber-related
criminal investigations.
For ten years, OLE and CCIPS have set the standard for
cybercrime legal education by conducting annual training directed
at keeping the Department's group of expert prosecutors at the
cutting edge of law and emerging technology. OLE should continue to
partner with CCIPS in sponsoring the CHIP Network's annual
conference. In addition, CCIPS annually conducts the following
OLE-sponsored training at the NAC: Basic Cybercrimes and
Computer-Based Evidence; Online Undercover Investigations;
Intellectual Property; and the Network Crimes Workshop. Both OLE
and CCIPS should continue to conduct this and similar training.
[new January 2007]
9-50.600
Training
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Each United States Attorney and CHIP AUSA has the
responsibility of ensuring that CHIP Coordinators maintain their
expertise by attending conferences and seminars sponsored by the
Office of Legal Education, especially the annual CHIP Conference
and Intellectual Property Seminar. Although USAOs should encourage
other AUSAs to attend OLE/CCIPS-sponsored training, CHIP AUSAs
should conduct in-office legal training to keep other AUSAs
apprised of critical search and seizure law applicable to obtaining
electronic evidence and conducting electronic surveillance. In
addition, CHIP AUSAs, especially those in CHIP Units, should
improve regional training on intellectual property enforcement for
federal and state agents, and continue to conduct outreach to the
high-tech industry and rights holder sector to foster the sharing
of information critical to effective prosecutions.
[new January 2007]
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