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Massachusetts Computer Crime Bill

April 1993

This legislation, which we discussed in the following April 1993 article, was eventually enacted into law in Massachusetts.

On March 24, 1993 Governor William Weld filed proposed “computer crime” amendments to the Massachusetts criminal statutes. Tom Franklin, of counsel to Gesmer Updegrove LLP, represented the Massachusetts Bar Association on the Massachusetts Commission on Computer Technology and Law, which had been appointed by the Governor in May of 1992 to make recommendations for this legislation. The Governor’s bills adopted all the recommendations of the study commission. The underlying philosophy of the proposed law is unique among the states, to the extent that the Commission attempted to minimize any adverse effects the law might have on free speech and privacy interests.

The proposed legislation would amend existing Massachusetts law to criminalize intentional damage or destruction of computer systems or data, intentional “trespass” into a system, and intentional theft of computer services. Rules of evidence also would be amended to allow the use in evidence of copies of computer files, thereby reducing the need to confiscate “originals” in the form of disks and tapes.

The Commission was chaired by Mitch Kapor, founder of Lotus Development Corporation and currently president of the Electronic Frontier Foundation, which seeks to protect First Amendment and privacy interests in the computer communications environment. It was appointed following earlier lobbying by the Massachusetts Computer Software Council, which persuaded former Governor Michael Dukakis to veto a comprehensive computer crime bill that would have more broadly and indiscriminately criminalized system intrusion and other consequences of “hacking”. In contrast to that bill and to the computer crime laws in many other states, the proposed Massachusetts approach would not treat computer crimes as a unique species of crime to be addressed by broad, comprehensive legislation, but rather as variations on traditional forms of crimesimplemented through the medium of a computer and thus properly addressed through minor changes to existing law.

Law enforcement agency representatives on the Commission supported this “minimalist” approach because it adequately filled the voids in existing law without unduly complicating the mechanical aspects of law enforcement, such as drafting indictments, jury instructions and search warrants. Civil rights representatives were equally pleased with the explicit endorsement in the Commission’s report of the need to protect free speech and privacy interests and to discourage abuse of criminal search and seizure laws.

Because the bill is non-partisan and contributes to the hospitable climate for high-technology which Massachusetts is seeking to promote, we expect the Governor’s recommendations to be enacted without controversy.