Wednesday, February 22, 2017

Scholarship Saturday: Punishing the cyber thief.

Military jurisprudence concerning the proper victim to charge in an electronic theft case was cumbersome after CAAF's 2014 decision in United States v. Cimball Sharpton, 73 M.J. 299 (CAAFlog case page).* In that case, the Court held that Cimball Sharpton had stolen from the Air Force when she misused her government purchase card – she had not stolen from the card-issuing bank or the vendors where the card had been illicitly used.

In its June 2016 decision, United States v. Williams, 75 M.J. 129 (2016) (CAAFlog case page), CAAF lamented its "unfortunate choice of language in Cimball Sharpton" (75 M.J. at 134) and set about clarifying the applicable standard:

We reiterate, in the usual case of a credit card or debit card larceny, the "person" who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money.

75 M.J. at 132 (emphasis added). Under the "usual" standard, Williams, who stole his buddy's credit card information and used it to buy pizza and access to an adult website, received an appellate acquittal. CAAF held that Williams had stolen from the pizza and porn vendors, not, as the government had charged, from his buddy. 75 M.J. at 134. CAAF's explanation for why Williams was a "usual" case, while Cimball Sharpton was not, had to do with contracts: In Cimball Sharpton, the card account holder (the Air Force) had a contract with the card-issuing bank (U.S. Bank) establishing that the bank would be held harmless for fraudulent charges made by the account holder's agents (Cimball Sharpton). Id. That contractual dynamic, CAAF held, made Cimball Sharpton unusual.

After acquitting Williams, CAAF took the time to write footnote 2, reminding practitioners of a concern that is even more fundamental than alleging the correct victim: Article 121, being derived from the common law, was only ever intended to punish the theft of things which are "tangible and capable of being possessed." 75 M.J. 130, n.2. Williams' theft of access to an adult website did not involve taking anything tangible. Therefore, charging that theft under Article 121 was problematic – it was a problem that was moot given the acquittal on other grounds, but the fact that CAAF took the time to address the principle despite the fact that it was moot only makes the point more salient.

It is against that backdrop – the complexities under Article 121 of selecting the right victim and charging only tangible thefts – that Colonel James A. Young, USAF (Ret.), wrote his July 2016 article in The Army Lawyer – Larceny in Credit, Debit, and Electronic Transactions, 2016 Army Law 26. Readers should note that Colonel Young is the Senior Legal Adviser to CAAF Judge Scott W. Stucky.  In his Article, Colonel Young advises:

There is a better way to charge these types of offenses without having to determine the identity of the victim. Charge the accused with violating Article 134, UCMJ, based on the federal statute proscribing the use of unauthorized access devices.

Id. at 26. Specifically, Colonel Young notes that 18 U.S.C. § 1029 "covers a wide range of fraudulent activity with respect to credit, debit, and electronic transactions without requiring identification of the victim of a loss. Instead, the focus is on the accused's use of a particular unauthorized access device." Id. at 27. Colonel Young posits that, if the accused stole "anything of value aggregating $1000 or more," then those thefts, whether of intangibles or not, can be punished under Article 134(3) by incorporating 18 U.S.C § 1029(a)(2). If the thefts do not aggregate to $1000 or more, then a violation of Article 134(1) or Article 134(2) can be charged instead.

The potential catch to Colonel Young's recommendation is the preemption doctrine. He addresses that concern by arguing that Article 121 does not preempt his proposed charging scheme because Congress never intended Article 121 to cover anything other than the methods of thievery known at common law. While potentially correct, that theory seems at odds with CAAF's precedent. Specifically, CAAF seems pretty comfortable with the idea that electronic theft of tangible property and money is chargeable under Article 121. If that is correct, then the preemption doctrine would seem to preclude charging the theft of tangibles under Article 134, whether the theft is committed by electronic means or not. Still, Colonel Young's suggestions are useful for cases where the property stolen is intangible. Given footnote 2 in Williams, that sort of theft appears to be outside the reach of Article 121, which leaves Article 134 as the only means for punishing that species of offense.

* Disclosure: I represented Cimball Sharpton on appeal before the CCA and CAAF.

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