Bill Text: HI HB1751 | 2010 | Regular Session | Introduced

Hawaii House Bill 1751 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Communication Service Fraud; Civil Remedies

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [HB1751 Detail]

Download: Hawaii-2010-HB1751-Introduced.html

Report Title:

Communication Service; Fraud

Description:

Establishes the offense of communication service fraud in the first and second degrees. Provides civil remedies. Authorizes forfeiture. Establishes evidentiary presumption. Adds definitions.

HOUSE OF REPRESENTATIVES	H.B. NO.	1751
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

relating to communications fraud.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. This Act updates existing statutes relating to cable television and telecommunication service fraud to address an expanding array of technology services offered by communication companies that include cable television and telecommunication, internet-based, or wireless distribution networks.

SECTION 2. Section 708-800, Hawaii Revised Statutes, is amended by adding seven new definitions to be appropriately inserted and to read as follows:

""Communication device" means:

(1) Any type of instrument, device, machine, mechanism, or equipment that is capable of transmitting, acquiring, decrypting, or receiving any telephonic, electronic, data, internet access, audio, video, microwave, or radio transmissions, signals, communications, or services, including the receipt, acquisition, transmission, or decryption of all the communications, transmissions, signals, or services provided by or through any cable television, fiber optic, telephone, satellite, microwave, radio, internet-based, data transmission, or wireless distribution network, system, or facility; and

(2) Any part, accessory, or component thereof, including any computer circuit, security module, smart card, software, computer chip, electronic mechanism, electronic serial number, mobile identification number, personal identification number, switches, or other component, accessory, or part of any communication device that is capable of facilitating the transmission, decryption, acquisition, or reception of all such communications, transmissions, signals, or services.

"Communication service" means:

(1) Any service lawfully provided for a charge or compensation to facilitate the origination, transmission, emission, or reception of signs, signals, data, writings, images, and sounds or intelligence of any nature by telephone, including but not limited to cellular telephones or wire, wireless, radio, electromagnetic, photo-electronic, or photo-optical systems; and

(2) Any service lawfully provided for a charge or compensation by any radio, telephone, cable television, fiber optic, satellite, microwave, internet-based or wireless distribution network, system, facility, or technology, including but not limited to any and all electronic, data, video, audio, internet access, telephonic, microwave, and radio communications, transmissions, signals, and services, and any such communications, transmissions, signals, and services provided directly or indirectly by or through any of those networks, systems, facilities, or technologies.

"Communication service provider" means:

(1) Any person or entity owning or operating any cable television, fiber optic, satellite, telephone, wireless, microwave, radio, data transmission, or internet-based distribution network, system, or facility for the provision of communications services;

(2) Any person or entity providing a communication service directly or indirectly as a reseller, including but not limited to a cellular, paging, or other wireless communications company or other person or entity that, for a fee, supplies the facility, cell site, mobile telephone switching office, or other equipment or communication service; and

(3) Any person or entity providing any communication service directly or indirectly by or through any distribution system, network, or facility.

"Unlawful communication device" means:

(1) Any communication device, electronic serial number, mobile identification number, or personal identification number that is capable of acquiring or facilitating the acquisition of a communication service without payment of lawful charges due to the communication service provider or that has been altered, modified, programmed, or reprogrammed, alone or in conjunction with another communication device or other equipment, to so acquire or facilitate the acquisition of a communication service without payment of lawful charges due to the communication service provider;

(2) Any phone altered to obtain service without payment of lawful charges due to the communication service provider, tumbler phone, counterfeit or clone phone, tumbler microchip, counterfeit or clone microchip, or other instrument capable of gaining access to a communication system, network, or facility operated by a communication service provider without payment of lawful charges due to the communication service provider; and

(3) Any communication device that is capable of, or has been altered, designed, modified, programmed, or reprogrammed, alone or in conjunction with another communication device or devices, so as to be capable of facilitating the unauthorized disruption, or the decryption, acquisition, receipt, or transmission, of a communication service without payment of lawful charges due to the communication service provider, including but not limited to any device, technology, product, service, equipment, computer software, or component or part thereof, primarily distributed, sold, designed, assembled, manufactured, modified, programmed, or reprogrammed or used for the purpose of providing the decryption, acquisition, receipt, or transmission of or access to any communication service provided by a communication service provider without payment of lawful charges due to it.

"Manufacture or assembly of an unlawful communication device" means to make, produce, or assemble an unlawful communication device or to modify, alter, program, or reprogram a communication device to be capable of acquiring, receiving, or transmitting communication services without payment of lawful charges due to the communication service provider, or disrupting or decrypting the services, or facilitating the acquisition, receipt, or transmission of the services without payment of lawful charges due to the communication service provider, or decryption or disruption of the services, or to knowingly assist others in those activities.

"Unlawful access device" means any:

(1) Type of instrument, device, machine, equipment, technology, or software that is primarily possessed, used, designed, assembled, manufactured, sold, distributed, offered, promoted, or advertised for the purpose of defeating or circumventing any technology, device, or software, or any component or part thereof, used by the provider, owner, or licensee of any communication service or of any data, audio, or video programs or transmissions to protect any communication, audio, or video services, programs, or transmissions from unauthorized access, acquisition, receipt, decryption, disclosure, communication, transmission, or re-transmission;

(2) Number or code of an existing, canceled, revoked, or nonexistent telephone number, telephone calling card number, credit card number, account number, personal identification number, or other credit device or method of numbering or coding that is employed in the issuance of telephone numbers, credit numbers, or other credit devices that can be used to obtain communication service.

"Manufacture or assembly of an unlawful access device" means to make, produce, or assemble an unlawful access device or to modify, alter, program, or reprogram any instrument, device, machine, equipment, or software so that it is capable of defeating or circumventing any technology, device, or software used by the provider, owner, or licensee of a communication service or of any data, audio, or video services, programs, or transmissions to protect any communication, data, audio, or video services, programs, or transmissions from unauthorized access, acquisition, disclosure, receipt, decryption, communication, transmission, or re-transmission."

SECTION 3. Chapter 708, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . COMMUNICATION SERVICE FRAUD

§708-A Communication service fraud in the first degree. (1) A person commits communication service fraud in the first degree if the person knowingly and with the intent to defraud a communication service provider:

(a) Publishes plans or instructions for making, assembling, or using an unlawful communication device or unlawful access device or sells, offers to sell, distributes, transfers, or otherwise makes available written instructions, plans, or materials, including hardware, cables, tools, data, computer software, or other information or equipment, to make or assemble an unlawful communication device or unlawful access device and knows that the written plans, instructions, or materials are intended to be used to make or assemble a device to obtain communication service without payment of applicable charges;

(b) Possesses with the intent to distribute, imports into this State, makes, assembles, sells, offers to sell, promotes, advertises, distributes, leases, transports, transfers, or otherwise makes available an unlawful communication device or unlawful access device and knows that the device is intended to be used to obtain communication service without payment of applicable charges; or

(c) Whether by use of an unlawful communication device or unlawful access device, by a connection or attachment to a communication service provider's system, or by trick, artifice, deception, false pretenses, or identification, or by other fraudulent means, uses, obtains, or attempts to obtain a communication service without payment of applicable charges, the value of which exceeds $1,000 in any six-month period;

(2) For the purpose of this section, "publish" means the communication or dissemination of information to any one or more persons, either orally, in person, or by telephone, radio, television, or computer, or in a writing of any kind, including without limitation a letter, memorandum, circular, handbill, newspaper, magazine article, or book.

(3) Communication service fraud in the first degree is a class C felony; provided that if the defendant has previously been convicted of an offense:

(a) Under this part;

(b) Part XII prior to its repeal; or

communication service fraud in the first degree is a class B felony.

§708-B Communication service fraud in the second degree. (1) A person commits the offense of communication service fraud in the second degree if the person knowingly and with intent to defraud a communication service provider:

(a) Possesses an unlawful communication device with intent to obtain communication service without payment of applicable charges;

(b) Possesses written instructions or plans to make or assemble an unlawful communication device with the intent to use the written plans or instructions to make or assemble a device to obtain communication service without payment of applicable charges; or

(c) Whether by use of an unlawful communication device or unlawful access device, by a connection or attachment to a communication service provider's system or by trick, artifice, deception, false pretenses, or identification, or by other fraudulent means, uses, obtains, or attempts to obtain a communication service without payment of applicable charges, the value of which does not exceed $1,000 in any six-month period;

(d) Modifies, alters, programs, or reprograms a communication device or access device for the purpose of obtaining communication service without payment of applicable charges.

(2) Communication service fraud in the second degree is a misdemeanor; provided that if the defendant has previously been convicted of an offense:

(a) Under this part;

(b) Part XII prior to its repeal; or

communication service fraud in the first degree is a class C felony.

§708-C Civil remedies. (1) Any communication service provider aggrieved by a violation of this part may bring a civil action to obtain the following relief:

(a) Preliminary or final injunctions to prevent or restrain violations, to prevent destruction of evidence, or to prevent dissipation of profits properly recoverable by an aggrieved communication service provider pursuant to subsection (2)(a);

(b) Monetary damages as set forth in subsection (2)(b), below; and

(2) Damages awarded by a court under this section shall be computed as provided in this subsection, with a communication service provider having the right to elect to recover under either paragraph (a) or (b) at any time prior to final judgment:

(a) The actual damages suffered by the communication service provider as a result of the violation and any profits of the violator that are attributable to the violation that are not taken into account in computing the actual damages. In determining the violator's profits, the complaining party shall be required to prove only the violator's gross revenue, and the violator shall be required to prove its deductible expenses and the elements of profit attributable to factors other than the violation. In calculating actual damages for violations of section 708-A(1)(c) or section 708-B(1)(c), there shall be a rebuttable presumption that they equal the difference between the value of services paid for by the violator and the value of services to which the violator gained access as a result of the violation; or

(b) Statutory damages, to be awarded by the court and not a jury, in an amount between $5,000 and $10,000 for each violation of subsection 708-A(1)(a) to (c), and in an amount between $1,000 and $10,000 for each violation of subsection 708-B(1)(a) to (d), as the court considers just.

(3) In any case where it is found that any violation of this part was committed willfully and for purposes of commercial advantage or private financial gain, in its discretion, the court may increase the award of either actual or statutory damages by an amount not more than $50,000.

(4) For purposes of all civil remedies established for violations of this part , the prohibited activity shall be deemed a separate violation with respect to each device, plan, or set of instructions involved in the action. For purposes of acts that involve public display of a communication service, each separate instance of public display shall be deemed a separate violation.

§708-D Forfeiture of unlawful communication or access device. Any unlawful communication or access device, or instructions or plans therefor, or any materials for making or assembling unlawful communication or access device possessed or used in violation of this part may be ordered forfeited to the State for destruction by it or, at the State's direction, by an aggrieved communication service provider or other disposition, subject to the requirements of chapter 712A.

§708-E Possession of devices as evidence of intent; rebuttable presumption. In a prosecution for a violation of this part, the existence on the property and in the possession of the defendant of:

(a) Any communication or unlawful access device that is connected in a manner as would permit the receipt of a communication service without payment of lawful charges to the communication service provider; or

(b) Any device designed in whole or in part to facilitate the performance of any illegal acts set forth in this part, where the totality of the circumstances, including the quantity of devices, surrounding the defendant's arrest indicates possession for resale,

shall give rise to a rebuttable presumption that the defendant intended to violate the provisions of this part."

SECTION 4. Part XII, chapter 708, Hawaii Revised Statutes, is repealed.

SECTION 5. In codifying the new sections added by section 5 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.