Interception of Communications; Eavesdropping; Disclosure of Certain

Private or Protected Information (a) Base Offense Level (Apply the greater): (1) 9; or (2) 6, if the offense of conviction has a statutory maximum term of im- prisonment of one year or less but more than six months. (b) Specific Offense Characteristics (1) If (A) the defendant is convicted under 18 U.S.C. § 1039(d) or (e); or (B) the purpose of the offense was to obtain direct or indirect commer- cial advantage or economic gain, increase by 3 levels. (2) (Apply the greater) If— (A) the defendant is convicted under 18 U.S.C. § 119, increase by 8 levels; or (B) the defendant is convicted under 18 U.S.C. § 119, and the offense involved the use of a computer or an interactive computer service to make restricted personal information about a covered person publicly available, increase by 10 levels. (c) Cross Reference (1) If the purpose of the offense was to facilitate another offense, apply the guideline applicable to an attempt to commit that other offense, if the resulting offense level is greater than that determined above. Commentary Statutory Provisions: 8 U.S.C. § 1375a(d)(5)(B)(i), (ii); 18 U.S.C. §§ 119, 1039, 1905, 2511; 26 U.S.C. §§ 7213(a)(1)–(3), (a)(5), (d), 7213A, 7216; 42 U.S.C. §§ 16962, 16984; 44 U.S.C. § 3572; 47 U.S.C. § 605. For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. Satellite Cable Transmissions.—If the offense involved interception of satellite cable trans- missions for purposes of commercial advantage or private financial gain (including avoiding pay- ment of fees), apply §2B5.3 (Criminal Infringement of Copyright) rather than this guideline. 234 ║ Guidelines Manual (November 1, 2024) §2H3.1 2. Imposition of Sentence for 18 U.S.C. § 1039(d) and (e).—Subsections 1039(d) and (e) of ti- tle 18, United States Code, require a term of imprisonment of not more than 5 years to be im- posed in addition to any sentence imposed for a conviction under 18 U.S.C. § 1039(a), (b), or (c). In order to comply with the statute, the court should determine the appropriate “total punish- ment” and divide the sentence on the judgment form between the sentence attributable to the conviction under 18 U.S.C. § 1039(d) or (e) and the sentence attributable to the conviction under 18 U.S.C. § 1039(a), (b), or (c), specifying the number of months to be served for the conviction under 18 U.S.C. § 1039(d) or (e). For example, if the applicable adjusted guideline range is 15– 21 months and the court determines a “total punishment” of 21 months is appropriate, a sentence of 9 months for conduct under 18 U.S.C. § 1039(a) plus 12 months for 18 U.S.C. § 1039(d) conduct would achieve the “total punishment” in a manner that satisfies the statutory requirement. 3. Inapplicability of Chapter Three (Adjustments).—If the enhancement under subsec- tion (b)(2) applies, do not apply §3A1.2 (Official Victim). 4. Definitions.—For purposes of this guideline: “Computer” has the meaning given that term in 18 U.S.C. § 1030(e)(1). “Covered person” has the meaning given that term in 18 U.S.C. § 119(b). “Interactive computer service” has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)). “Means of identification” has the meaning given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual (i.e., not fictitious) individual, other than the defendant or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant Conduct). “Personal information” means sensitive or private information involving an identifiable indi- vidual (including such information in the possession of a third party), including (A) medical rec- ords; (B) wills; (C) diaries; (D) private correspondence, including e-mail; (E) financial records; (F) photographs of a sensitive or private nature; or (G) similar information. “Restricted personal information” has the meaning given that term in 18 U.S.C. § 119(b). 5. Upward Departure.—There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such a case, an upward departure may be warranted. The following are examples of cases in which an upward departure may be warranted: (A) The offense involved personal information, means of identification, confidential phone rec- ords information, or tax return information of a substantial number of individuals. (B) The offense caused or risked substantial non-monetary harm (e.g., physical harm, psycho- logical harm, or severe emotional trauma, or resulted in a substantial invasion of privacy interest) to individuals whose private or protected information was obtained. Historical Note Effective November 1, 1987. Amended effective November 1, 1989 (amendment 169); November 1, 2001 (amendment 628); May 1, 2007 (amendment 697); November 1, 2007 (amendment 708); November 1, 2008 (amendment 718); November 1, 2009 (amendments 726 and 737); November 1, 2014 (amendment 781); No- vember 1, 2023 (amendments 815 and 824). Guidelines Manual (November 1, 2024) ║ 235 §2H3.3