USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
The Stored Communications Act prohibits intention - ally accessing email or voicemail without authorisation or in a way that exceeded authorised access (18 USC Section 2701). Sanctions include up to five years’ imprisonment and a USD250,000 fine, or ten years’ imprisonment for subsequent offences. Prosecutors may charge other computer fraud viola - tions (which have similar elements) as wire fraud (18 USC Section 1343) due to the wire fraud statute’s higher penalties, including fines of up to USD250,000 for individuals and USD500,000 for organisations, and imprisonment for up to 20 years. If the fraud affects a financial institution, or if the violation is in connection with a Presidentially declared major disaster or emer - gency, violators face fines of up to USD1 million and up to 30 years’ imprisonment. The Wiretap Act prohibits intentionally intercepting or endeavouring to intercept communications with - out consent from the speaker (18 USC Section 2511). Violators face a USD250,000 fine and up to five years’ imprisonment. The Theft of Trade Secrets statute prohibits the theft of trade secrets and the knowing possession or use of stolen trade secrets (18 USC Section 1832). Viola - tors are subject to fines of up to USD5 million or three times the value of the stolen trade secret. Related criminal laws prohibit economic espionage (18 USC Section 1831) and the wilful infringement of copyright for the purpose of commercial advantage or private financial gain (17 USC Section 506 (a); 18 USC Sec - tion 2319). 3.10 Financial/Trade/Customs Sanctions Financial Sanctions OFAC enforces economic and trade sanctions against countries, territories, entities, property and individu - als who engage in certain prohibited transactions. Prohibited transactions are designated based on US foreign policy or national security interests. For example, OFAC sanctions the transfer of assets to, trade with, and export of services to certain compre - hensively sanctioned countries, and maintains a list of “blocked” persons with whom US persons cannot conduct any business and whose assets US persons must freeze. OFAC’s administrative actions include
licence denial, imposing a civil monetary penalty for violations and referring violations to the DOJ for pos - sible criminal prosecution. OFAC sanctions are based on two principal statutes: the Trading with the Enemy Act (TWEA) (50 USC App Sections 5, 16) and the International Emergency Eco - nomic Powers Act (IEEPA) (50 USC Section 1701 et seq). OFAC enforces sanctions extraterritorially against US persons on a “strict liability” basis. Under the TWEA, wilful violators can be fined up to USD1 million or imprisoned for up to 20 years, or both. Criminal penalties are subject to increase pursuant to 18 USC 3571. Civil penalties currently cannot exceed USD111,308 per violation (subject to annual inflation - ary adjustment). Under the IEEPA, criminal liability attaches to per - sons who wilfully violate the law. Criminal liability may include a fine of up to USD1 million or a prison term of up to 20 years, or both. Maximum civil penalties may not exceed the greater of USD377,700 (subject to annual inflationary adjustment) or an amount that is twice the amount of the transaction that is the basis of the violation. Penalties can be substantially mitigated through the submission of a valid voluntary disclosure. The 21st Century Peace through Strength Act, Pub L No 118-50, div D Section 3111, extends the statute of limitations from five years to ten years for civil and criminal violations of the TWEA and the IEEPA occur - ring after April 2024. Trade – Export Controls and Anti-Boycott The two principal export control regimes are: • the International Traffic in Arms Regulations (ITAR) administered by the US Department of State pur - suant to the Arms Export Control Act (AECA) (22 USC § 2778); and • the Export Administration Regulations (EAR) administered by the Department of Commerce pursuant to the Export Control Reform Act of 2018 (ECRA) (50 USC Section 4811 et seq). ITAR generally govern the exportation, transfer and temporary importation of defence articles (hardware,
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