Keith Mack
As computers and other electronic devices become an integral part of our daily lives, the number of crimes committed via computers has been steadily increasing. In response to this, states and the federal government have been passing new laws to combat cybercrime and improve cybersecurity. While federal criminal law deals with crimes that cross state lines, state laws focus on local crimes. However, since cyber crimes involve interstate communication networks, many defendants are charged with federal crimes and tried in federal court. This raises the question: can states have contradicting cyber laws than the federal government?
| Characteristics | Values |
|---|---|
| Number of states with contradicting cyber laws | 4 out of 50 |
| Federal laws to combat cybercrime | Computer Fraud and Abuse Act (“CFAA”), Cybersecurity Information Sharing Act (“CISA Law”), Cyber Incident Reporting for Critical Infrastructure Act of 2022 (“CIRCIA”) |
| State laws to combat cybercrime | Kentucky, Virginia, Maryland, and Florida have enacted laws to enforce security standards and report incidents |
| Challenges for law enforcement | Coordination with other countries, lack of comprehensive picture of cybercrime due to varying definitions and mechanisms for collecting data |
| Impact of cybercrime | Hundreds of billions of dollars in losses, threats to public safety and economic security |
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What You'll Learn
Federal vs state cybercrime definitions
Federal cybercrime laws in the US apply to crimes that cross state lines, while state laws focus on crimes within their borders. However, because cybercrimes often involve interstate communication networks, many defendants are charged under federal law and their cases are tried in federal court.
The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, is the primary federal law for prosecuting cybercrime. It protects computers with a federal interest, including federal, bank, and interstate commerce computers, from trespassing, threats, damage, espionage, and fraudulent use. The CFAA outlaws conduct that victimizes computer systems and networks. At least one court has applied the CFAA to a hacker in Russia who gained unauthorized access to computers in the US.
While all 50 states have data breach notification laws, each state has its own specific data breach legislation. For example, Kentucky requires licensed insurers to implement and report cybersecurity and data privacy standards annually, while Virginia mandates that public sector agencies report all cybersecurity incidents. Maryland's laws expand training programs and dedicate funds to protect digital and information technology infrastructure, including its 911 emergency telephone system. In contrast, Florida requires municipalities to adopt cybersecurity standards, report ransomware incidents, and prohibits government agencies from paying ransomware demands.
The punishment for cybercrimes under federal and state laws is generally based on the value of the damage caused. For instance, in Colorado, cybercrimes causing damage of less than $100 are charged as Class 3 misdemeanors, while those causing damage of more than $15,000 are Class 3 felonies, punishable by up to 12 years in prison and a fine of up to $750,000.
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Data breach notification laws
State data breach notification laws typically dictate the specific information that must be included in a breach notice. This can include a clear description of the compromise, the actions being taken to protect affected individuals, and contact information for relevant organisations and law enforcement. For example, in Kentucky, licensed insurers must report cybersecurity events to the state within three days of discovery, and they may face fines of up to $10,000 per violation. In Virginia, public sector agencies are required to report all cybersecurity incidents.
The federal government has also issued sector-specific guidance for critical infrastructure operators, such as the nuclear, chemical, electrical, and transportation sectors. Additionally, the Cybersecurity Information Sharing Act (CISA Law) has two primary impacts. Firstly, it enables companies to monitor network traffic and take defensive measures on their systems. Secondly, it encourages the sharing of cyber-threat information between companies and the government. The CISA Law also led to the creation of the Cybersecurity and Infrastructure Security Agency (CISA), which is responsible for protecting critical infrastructure and coordinating between government and private sector organisations.
The Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA) mandates that "covered entities" in critical infrastructure sectors must report significant cybersecurity incidents to CISA within 72 hours of becoming aware of the breach. If a covered entity pays a ransom, it must be reported within 24 hours. Additionally, the Securities and Exchange Commission (SEC) has recently implemented a rule requiring public companies to disclose material cybersecurity incidents using Form 8-K within four business days of determining the incident's materiality.
While the existence of both federal and state data breach notification laws may seem redundant or contradictory, it is important to recognise that they work together to create a comprehensive framework for addressing cybersecurity incidents. The specific laws and regulations that apply to a particular organisation will depend on the state in which it operates and the sector in which it operates. By having both levels of legislation, organisations can be held accountable for protecting sensitive data and mitigating the impact of data breaches.
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State-specific cyber laws
In the United States, cybersecurity laws exist at both the federal and state levels. While there is no single US cybersecurity law of general application, businesses must comply with sector-specific federal and state laws. For example, healthcare organisations generally must comply with HIPAA, and many financial institutions must comply with the Gramm-Leach-Bliley Act (GLBA).
The federal Computer Fraud and Abuse Act (CFAA) is the primary mechanism for prosecuting cybercrime, including hacking. The Cybersecurity Information Sharing Act (CISA Law) allows companies to monitor network traffic and encourages the sharing of cyber-threat information between companies and the government. The Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA) requires "covered entities" in critical infrastructure sectors to report substantial cybersecurity incidents to CISA within 72 hours of the incident.
At the state level, some US states have enacted legislation to enforce security standards and consequences for committing cyberattacks. For example, Maryland has passed laws to dedicate public money to protecting digital and information technology infrastructure, while Florida has enacted laws requiring municipalities to adopt cybersecurity standards and report incidents of ransomware. Kentucky requires licensed insurers to implement and report cybersecurity and data privacy standards annually, while Virginia has passed laws requiring public sector agencies to report all cybersecurity incidents.
While federal law enforcement agencies are using a variety of mechanisms to track and prevent cybercrimes, they lack a unified definition of cybercrime and a central repository for cybercrime data, impacting their ability to coordinate and target resources effectively. The US Congress has proposed numerous bills to expand upon cybersecurity regulation, and the Department of Justice is developing categories of cybercrime to help agencies classify and track incidents.
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Federal cyber law enforcement agencies
In the United States, cyber laws exist at both the federal and state levels, with each state having its own data breach laws. While federal law enforcement agencies are responsible for enforcing these laws, the varying definitions of cybercrime across agencies hinder their ability to coordinate efforts effectively.
The Federal Bureau of Investigation (FBI) is the primary federal agency responsible for investigating cyberattacks and intrusions by criminals, foreign adversaries, and terrorists. The FBI's Internet Crime Complaint Center (IC3) collects reports of internet crime from the public, and its Recovery Asset Team assists in freezing and seizing assets to compensate victims. Additionally, the FBI's CyWatch provides 24/7 support to track incidents and communicate with field offices nationwide.
The Secret Service, another federal law enforcement agency, focuses on cybercrimes that target the American financial system, such as network intrusions, ransomware, identity theft, and money laundering. They collaborate with other law enforcement agencies, prosecutors, private industry, and academia through their Cyber Fraud Task Forces (CFTF) to combat these crimes.
The Cybersecurity and Infrastructure Security Agency (CISA), a component of the Department of Homeland Security, is responsible for protecting critical infrastructure in the United States. CISA facilitates the exchange of cyber defense information and collaborates with various stakeholders, including federal, state, local, tribal, and territorial governments, as well as international partners. The Cyber Incident Reporting for Critical Infrastructure Act of 2022 mandates that "covered entities" in critical infrastructure sectors report significant cybersecurity incidents to CISA within 72 hours of discovery.
While federal law enforcement agencies play a crucial role in enforcing cyber laws and investigating cybercrimes, the lack of a unified definition of cybercrime and a central repository for cybercrime data pose challenges to their efforts.
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Cybercrime prosecution
While the US federal government has certain cyber laws in place, individual states also have their own cyber laws, which can differ from federal laws. For example, while the federal government has issued sector-specific guidance for critical infrastructure operators, states like Maryland and Florida have expanded on training programs and set standards for their emergency telephone systems. Further, while the federal government has certain data breach notification laws in place, each state has its own data breach laws.
The federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, is the primary federal statutory mechanism for prosecuting cybercrime, including hacking. The FBI is the lead federal agency for investigating cyberattacks and intrusions. It has specially trained cyber squads in each of its 55 field offices, working with interagency task force partners. The rapid-response Cyber Action Team can deploy across the country within hours to respond to major incidents. The FBI also works with international counterparts to seek justice for victims of malicious cyber activity. The Internet Crime Complaint Center (IC3) collects reports of Internet crime from the public and has assisted in freezing hundreds of thousands of dollars for victims of cybercrime.
However, there are limitations to the US's ability to fight cybercrime. For example, federal law enforcement agencies lack a central repository for cybercrime data, making it difficult to know how much and where to target resources. Further, these agencies do not define cybercrime in the same way, impacting their ability to share important information and coordinate efforts. Additionally, some victims are hesitant to come forward because they don't know who to report an attack to or what can be done about it, and some businesses may not report cybercrimes to protect their reputation.
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Frequently asked questions
The federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, is the primary federal mechanism for prosecuting cybercrime, including hacking.
In 2022, four states passed nearly half of all new cybersecurity laws enacted across the US. In Florida, municipalities are required to adopt cybersecurity standards, report incidents of ransomware, and assess steep fines against perpetrators of attacks. In Maryland, new laws expand training programs and dedicate public money to protecting digital and information technology infrastructure. Kentucky requires licensed insurers to implement and report cybersecurity and data privacy standards annually.
Cybercriminals can remain anonymous and commit crimes across state lines or internationally, increasing the challenges for law enforcement. There is also a lack of consistency in the definition of cybercrime across federal law enforcement agencies, impacting their ability to share information and coordinate efforts.
The US government has proposed numerous bills and regulations to enhance cybersecurity, including the Streamlining Federal Cybersecurity Regulations Act, which aims to harmonize regulatory regimes across agencies. Other efforts include creating a "Commission on Enhancing National Cybersecurity" and improving Government IT security.
