§ 1029. — Fraud and related activity in connection with access devices.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC1029]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 47--FRAUD AND FALSE STATEMENTS
Sec. 1029. Fraud and related activity in connection with access
devices
(a) Whoever--
(1) knowingly and with intent to defraud produces, uses, or
traffics in one or more counterfeit access devices;
(2) knowingly and with intent to defraud traffics in or uses one
or more unauthorized access devices during any one-year period, and
by such conduct obtains anything of value aggregating $1,000 or more
during that period;
(3) knowingly and with intent to defraud possesses fifteen or
more devices which are counterfeit or unauthorized access devices;
(4) knowingly, and with intent to defraud, produces, traffics
in, has control or custody of, or possesses device-making equipment;
(5) knowingly and with intent to defraud effects transactions,
with 1 or more access devices issued to another person or persons,
to receive payment or any other thing of value during any 1-year
period the aggregate value of which is equal to or greater than
$1,000;
(6) without the authorization of the issuer of the access
device, knowingly and with intent to defraud solicits a person for
the purpose of--
(A) offering an access device; or
(B) selling information regarding or an application to
obtain an access device;
(7) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a
telecommunications instrument that has been modified or altered to
obtain unauthorized use of telecommunications services;
(8) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a scanning
receiver;
(9) knowingly uses, produces, traffics in, has control or
custody of, or possesses hardware or software, knowing it has been
configured to insert or modify telecommunication identifying
information associated with or contained in a telecommunications
instrument so that such instrument may be used to obtain
telecommunications service without authorization; or
(10) without the authorization of the credit card system member
or its agent, knowingly and with intent to defraud causes or
arranges for another person to present to the member or its agent,
for payment, 1 or more evidences or records of transactions made by
an access device;
shall, if the offense affects interstate or foreign commerce, be
punished as provided in subsection (c) of this section.
(b)(1) Whoever attempts to commit an offense under subsection (a) of
this section shall be subject to the same penalties as those prescribed
for the offense attempted.
(2) Whoever is a party to a conspiracy of two or more persons to
commit an offense under subsection (a) of this section, if any of the
parties engages in any conduct in furtherance of such offense, shall be
fined an amount not greater than the amount provided as the maximum fine
for such offense under subsection (c) of this section or imprisoned not
longer than one-half the period provided as the maximum imprisonment for
such offense under subsection (c) of this section, or both.
(c) Penalties.--
(1) Generally.--The punishment for an offense under subsection
(a) of this section is--
(A) in the case of an offense that does not occur after a
conviction for another offense under this section--
(i) if the offense is under paragraph (1), (2), (3),
(6), (7), or (10) of subsection (a), a fine under this title
or imprisonment for not more than 10 years, or both; and
(ii) if the offense is under paragraph (4), (5), (8), or
(9) of subsection (a), a fine under this title or
imprisonment for not more than 15 years, or both;
(B) in the case of an offense that occurs after a conviction
for another offense under this section, a fine under this title
or imprisonment for not more than 20 years, or both; and
(C) in either case, forfeiture to the United States of any
personal property used or intended to be used to commit the
offense.
(2) Forfeiture procedure.--The forfeiture of property under this
section, including any seizure and disposition of the property and
any related administrative and judicial proceeding, shall be
governed by section 413 of the Controlled Substances Act, except for
subsection (d) of that section.
(d) The United States Secret Service shall, in addition to any other
agency having such authority, have the authority to investigate offenses
under this section. Such authority of the United States Secret Service
shall be exercised in accordance with an agreement which shall be
entered into by the Secretary of the Treasury and the Attorney General.
(e) As used in this section--
(1) the term ``access device'' means any card, plate, code,
account number, electronic serial number, mobile identification
number, personal identification number, or other telecommunications
service, equipment, or instrument identifier, or other means of
account access that can be used, alone or in conjunction with
another access device, to obtain money, goods, services, or any
other thing of value, or that can be used to initiate a transfer of
funds (other than a transfer originated solely by paper instrument);
(2) the term ``counterfeit access device'' means any access
device that is counterfeit, fictitious, altered, or forged, or an
identifiable component of an access device or a counterfeit access
device;
(3) the term ``unauthorized access device'' means any access
device that is lost, stolen, expired, revoked, canceled, or obtained
with intent to defraud;
(4) the term ``produce'' includes design, alter, authenticate,
duplicate, or assemble;
(5) the term ``traffic'' means transfer, or otherwise dispose
of, to another, or obtain control of with intent to transfer or
dispose of;
(6) the term ``device-making equipment'' means any equipment,
mechanism, or impression designed or primarily used for making an
access device or a counterfeit access device;
(7) the term ``credit card system member'' means a financial
institution or other entity that is a member of a credit card
system, including an entity, whether affiliated with or identical to
the credit card issuer, that is the sole member of a credit card
system;
(8) the term ``scanning receiver'' means a device or apparatus
that can be used to intercept a wire or electronic communication in
violation of chapter 119 or to intercept an electronic serial
number, mobile identification number, or other identifier of any
telecommunications service, equipment, or instrument;
(9) the term ``telecommunications service'' has the meaning
given such term in section 3 of title I of the Communications Act of
1934 (47 U.S.C. 153);
(10) the term ``facilities-based carrier'' means an entity that
owns communications transmission facilities, is responsible for the
operation and maintenance of those facilities, and holds an
operating license issued by the Federal Communications Commission
under the authority of title III of the Communications Act of 1934;
and
(11) the term ``telecommunication identifying information''
means electronic serial number or any other number or signal that
identifies a specific telecommunications instrument or account, or a
specific communication transmitted from a telecommunications
instrument.
(f) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law enforcement
agency of the United States, a State, or a political subdivision of a
State, or of an intelligence agency of the United States, or any
activity authorized under chapter 224 of this title. For purposes of
this subsection, the term ``State'' includes a State of the United
States, the District of Columbia, and any commonwealth, territory, or
possession of the United States.
(g)(1) It is not a violation of subsection (a)(9) for an officer,
employee, or agent of, or a person engaged in business with, a
facilities-based carrier, to engage in conduct (other than trafficking)
otherwise prohibited by that subsection for the purpose of protecting
the property or legal rights of that carrier, unless such conduct is for
the purpose of obtaining telecommunications service provided by another
facilities-based carrier without the authorization of such carrier.
(2) In a prosecution for a violation of subsection (a)(9), (other
than a violation consisting of producing or trafficking) it is an
affirmative defense (which the defendant must establish by a
preponderance of the evidence) that the conduct charged was engaged in
for research or development in connection with a lawful purpose.
(h) Any person who, outside the jurisdiction of the United States,
engages in any act that, if committed within the jurisdiction of the
United States, would constitute an offense under subsection (a) or (b)
of this section, shall be subject to the fines, penalties, imprisonment,
and forfeiture provided in this title if--
(1) the offense involves an access device issued, owned,
managed, or controlled by a financial institution, account issuer,
credit card system member, or other entity within the jurisdiction
of the United States; and
(2) the person transports, delivers, conveys, transfers to or
through, or otherwise stores, secrets, or holds within the
jurisdiction of the United States, any article used to assist in the
commission of the offense or the proceeds of such offense or
property derived therefrom.
(Added Pub. L. 98-473, title II, Sec. 1602(a), Oct. 12, 1984, 98 Stat.
2183; amended Pub. L. 99-646, Sec. 44(b), Nov. 10, 1986, 100 Stat. 3601;
Pub. L. 101-647, title XII, Sec. 1205(f), Nov. 29, 1990, 104 Stat. 4831;
Pub. L. 103-322, title XXV, Sec. 250007, title XXXIII,
Sec. 330016(2)(I), Sept. 13, 1994, 108 Stat. 2087, 2148; Pub. L. 103-
414, title II, Sec. 206, Oct. 25, 1994, 108 Stat. 4291; Pub. L. 104-294,
title VI, Sec. 601(l), Oct. 11, 1996, 110 Stat. 3501; Pub. L. 105-172,
Sec. 2(a)-(d), Apr. 24, 1998, 112 Stat. 53, 54; Pub. L. 107-56, title
III, Sec. 377, Oct. 26, 2001, 115 Stat. 342; Pub. L. 107-273, div. B,
title IV, Sec. 4002(b)(11), Nov. 2, 2002, 116 Stat. 1808.)
References in Text
Section 413 of the Controlled Substances Act, referred to in subsec.
(c)(2), is classified to section 853 of Title 21, Food and Drugs.
The Communications Act of 1934, referred to in subsec. (e)(10), is
act June 19, 1934, ch. 652, 48 Stat. 1964, as amended. Title III of the
Act is classified generally to subchapter III (Sec. 301 et seq.) of
chapter 5 of Title 47, Telegraphs, Telephones, and Radiotelegraphs. For
complete classification of this Act to the Code, see section 609 of
Title 47 and Tables.
Amendments
2002--Subsec. (c)(1)(A)(ii). Pub. L. 107-273, Sec. 4002(b)(11)(A),
substituted ``(9)'' for ``(9),''.
Subsec. (e)(8). Pub. L. 107-273, Sec. 4002(b)(11)(B), inserted
semicolon at end.
2001--Subsec. (h). Pub. L. 107-56 added subsec. (h).
1998--Subsec. (a)(8) to (10). Pub. L. 105-172, Sec. 2(a), added
pars. (8) and (9), redesignated former par. (9) as (10), and struck out
former par. (8) which read as follows: ``knowingly and with intent to
defraud uses, produces, traffics in, has control or custody of, or
possesses--
``(A) a scanning receiver; or
``(B) hardware or software used for altering or modifying
telecommunications instruments to obtain unauthorized access to
telecommunications services, or''.
Subsec. (b)(1). Pub. L. 105-172, Sec. 2(b)(2), substituted ``subject
to the same penalties as those prescribed for the offense attempted''
for ``punished as provided in subsection (c) of this section''.
Subsec. (c). Pub. L. 105-172, Sec. 2(b)(1), amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: ``The
punishment for an offense under subsection (a) or (b)(1) of this section
is--
``(1) a fine under this title or twice the value obtained by the
offense, whichever is greater, or imprisonment for not more than ten
years, or both, in the case of an offense under subsection (a)(2),
(3), (5), (6), (7), (8), or (9) of this section which does not occur
after a conviction for another offense under either such subsection,
or an attempt to commit an offense punishable under this paragraph;
``(2) a fine under this title or twice the value obtained by the
offense, whichever is greater, or imprisonment for not more than
fifteen years, or both, in the case of an offense under subsection
(a)(1), (4), (5), (6), (7), or (8) of this section which does not
occur after a conviction for another offense under either such
subsection, or an attempt to commit an offense punishable under this
paragraph; and
``(3) a fine under this title or twice the value obtained by the
offense, whichever is greater, or imprisonment for not more than
twenty years, or both, in the case of an offense under subsection
(a) of this section which occurs after a conviction for another
offense under such subsection, or an attempt to commit an offense
punishable under this paragraph.''
Subsec. (e)(8). Pub. L. 105-172, Sec. 2(c), inserted ``or to
intercept an electronic serial number, mobile identification number, or
other identifier of any telecommunications service, equipment, or
instrument'' before the period at end.
Subsec. (e)(9) to (11). Pub. L. 105-172, Sec. 2(d)(2), added pars.
(9) to (11).
Subsec. (g). Pub. L. 105-172, Sec. 2(d)(1), added subsec. (g).
1996--Subsec. (a)(5). Pub. L. 104-294, Sec. 601(l)(1)(A),
redesignated par. (5), relating to instruments that have been modified
or altered to obtain unauthorized access to telecommunications services,
as (7).
Subsec. (a)(6). Pub. L. 104-294, Sec. 601(l)(1)(C), in par. (6)
relating to solicitations, struck out ``or'' at end.
Pub. L. 104-294, Sec. 601(l)(1)(A), redesignated par. (6), relating
to scanning receivers or other hardware or software used to obtain
unauthorized access to telecommunications services, as (8).
Subsec. (a)(7). Pub. L. 104-294, Sec. 601(l)(1)(A), (C),
redesignated par. (5), relating to instruments that have been modified
or altered to obtain unauthorized access to telecommunications services,
as (7), and struck out ``or'' at end. Par. transferred to appear in
numerical order to reflect probable intent of Congress. Former par. (7)
redesignated (9).
Pub. L. 104-294, Sec. 601(l)(1)(B), redesignated par. (7) as (9).
Subsec. (a)(8). Pub. L. 104-294, Sec. 601(l)(1)(A), (D),
redesignated par. (6), relating to scanning receivers or other hardware
or software used to obtain unauthorized access to telecommunications
services, as (8) and inserted ``or'' at end. Par. transferred to appear
in numerical order to reflect probable intent of Congress.
Subsec. (a)(9). Pub. L. 104-294, Sec. 601(l)(1)(B), redesignated
par. (7) as (9).
Subsec. (c)(1). Pub. L. 104-294, Sec. 601(l)(3)(A), substituted
``(7), (8), or (9)'' for ``or (7)''.
Subsec. (c)(2). Pub. L. 104-294, Sec. 601(l)(3)(B), substituted
``(6), (7), or (8)'' for ``or (6)''.
Subsec. (e)(7), (8). Pub. L. 104-294, Sec. 601(l)(2), redesignated
par. (7), defining ``scanning receiver'', as (8).
1994--Subsec. (a)(3). Pub. L. 103-322, Sec. 250007(1)(A), and Pub.
L. 103-414, Sec. 206(a)(1), amended par. (3) identically, striking
``or'' at end.
Subsec. (a)(5). Pub. L. 103-414, Sec. 206(a)(2), added par. (5)
relating to instruments that have been modified or altered to obtain
unauthorized use of telecommunications services.
Pub. L. 103-322, Sec. 250007(1)(B), added par. (5) relating to
transactions involving use of access devices issued to persons other
than user.
Subsec. (a)(6). Pub. L. 103-414, Sec. 206(a)(2), added par. (6)
relating to scanning receivers or other hardware or software used to
obtain unauthorized access to telecommunications services.
Pub. L. 103-322, Sec. 250007(1)(B), added par. (6) relating to
solicitations which offer access devices or information regarding access
devices.
Subsec. (a)(7). Pub. L. 103-322, Sec. 250007(1)(B), added par. (7).
Subsec. (c)(1). Pub. L. 103-322, Sec. 330016(2)(I), substituted
``fine under this title or twice the value obtained by the offense,
whichever is greater, or imprisonment'' for ``fine of not more than the
greater of $10,000 or twice the value obtained by the offense or
imprisonment''.
Pub. L. 103-322, Sec. 250007(2), substituted ``(a)(2), (3), (5),
(6), or (7)'' for ``(a)(2) or (a)(3)''.
Subsec. (c)(2). Pub. L. 103-414, Sec. 206(b), substituted ``(a)(1),
(4), (5), or (6)'' for ``(a)(1) or (a)(4)''.
Pub. L. 103-322, Sec. 330016(2)(I), substituted ``fine under this
title or twice the value obtained by the offense, whichever is greater,
or imprisonment'' for ``fine of not more than the greater of $50,000 or
twice the value obtained by the offense or imprisonment''.
Subsec. (c)(3). Pub. L. 103-322, Sec. 330016(2)(I), substituted
``fine under this title or twice the value obtained by the offense,
whichever is greater, or imprisonment'' for ``fine of not more than the
greater of $100,000 or twice the value obtained by the offense or
imprisonment''.
Subsec. (e)(1). Pub. L. 103-414, Sec. 206(c)(1), inserted
``electronic serial number, mobile identification number, personal
identification number, or other telecommunications service, equipment,
or instrument identifier,'' after ``account number,''.
Subsec. (e)(5), (6). Pub. L. 103-322, Sec. 250007(3)(A), (B), and
Pub. L. 103-414, Sec. 206(c)(2), (3), amended subsec. (e) identically,
striking ``and'' at end of par. (5) and substituting ``; and'' for
period at end of par. (6).
Subsec. (e)(7). Pub. L. 103-414, Sec. 206(c)(4), added par. (7)
defining ``scanning receiver''.
Pub. L. 103-322, Sec. 250007(3)(C), added par. (7) defining ``credit
card system member''.
1990--Subsec. (f). Pub. L. 101-647 inserted at end ``For purposes of
this subsection, the term `State' includes a State of the United States,
the District of Columbia, and any commonwealth, territory, or possession
of the United States.''
1986--Subsec. (f). Pub. L. 99-646 which directed that subsec. (f) be
amended by substituting ``chapter 224 of this title'' for ``title V of
the Organized Crime Control Act of 1970 (18 U.S.C. note prec. 3481)''
was executed by making the substitution for ``title V of the Organized
Crime Control Act of 1970) 18 U.S.C. note prec. 3481)'' to reflect the
probable intent of Congress.
Termination Date of 2001 Amendment
Amendments by title III of Pub. L. 107-56 to terminate effective on
and after the first day of fiscal year 2005 if Congress enacts a joint
resolution that such amendments no longer have the force of law, see
section 303 of Pub. L. 107-56, set out as a Four-Year Congressional
Review; Expedited Consideration note under section 5311 of Title 31,
Money and Finance.
Transfer of Functions
For transfer of the functions, personnel, assets, and obligations of
the United States Secret Service, including the functions of the
Secretary of the Treasury relating thereto, to the Secretary of Homeland
Security, and for treatment of related references, see sections 381,
551(d), 552(d), and 557 of Title 6, Domestic Security, and the
Department of Homeland Security Reorganization Plan of November 25,
2002, as modified, set out as a note under section 542 of Title 6.
Report to Congress
Section 1603 of Pub. L. 98-473 directed Attorney General to report
to Congress annually, during first three years following Oct. 12, 1984,
concerning prosecutions under this section.
Section Referred to in Other Sections
This section is referred to in sections 981, 982, 1028, 1030, 1961,
2326, 2516 of this title; title 31 section 9703.
