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9-50.000
CHIP GUIDANCE

9-50.100 Overview of Roles and Responsibilities in the CHIP Program
9-50.101 United States Attorneys
9-50.102 CHIP Coordinators and CHIP Unit AUSAS
9-50.103 Computer Crime & Intellectual Property Section
9-50.104 Executive Office for United States Attorneys
9-50.200 Specific CHIP Program Responsibilities
9-50.201 Prosecution of Core Offenses
9-50.202 Protecting the Public
9-50.203 Core Offense Targets
9-50.300 Application of Resources
9-50.400 Coordination and Notification
9-50.500 International Investigations
9-50.600 Training

9-50.100

Overview of Roles and Responsibilities in the CHIP Program

The United States Attorneys' Offices (USAOs), the Computer Crime & Intellectual Property Section (CCIPS), and the Executive Office for United States Attorneys (EOUSA), in coordination with the Office of the Deputy Attorney General, have shared responsibilities for the performance, oversight, monitoring, evaluation, and coordination of the CHIP program.

9-50.101

United States Attorneys

The United States Attorneys have primary 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

The CHIP Coordinators and CHIP Unit AUSAs (collectively CHIP AUSAs) in each district have four program responsibilities:

  1. to prosecute computer crime and intellectual property offenses;

  2. to serve as the district's legal counsel on matters relating to those offenses, and the collection of electronic or digital evidence;

  3. to train prosecutors and law enforcement personnel in the region; and

  4. 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

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

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

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

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

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

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

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

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:

  1. 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.

  2. 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.

    1. 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.

    2. 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.

  3. 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.

    1. 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.

  4. 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.

    1. 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.

    2. 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

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]