Manhattan district attorney Cyrus Vance Jr.

If prosecutors are going to effectively prosecute identity theft and stolen computer code, New York needs to upgrade its laws for the 21st Century, according to a report [PDF] released last week by a New York State task force led by Manhattan district attorney Cyrus R. Vance, Jr.

 

New York’s criminal code has not had a major overhaul since 1965. That was the same year that Gordon Moore first proposed Moore’s Law, which posits that computing power will double every 18 months (so far, it has held true). While computing power has grown exponentially over the last half-century, the criminal code has been left in the stone age.

As far as criminal law is concerned, it is impossible to steal computer code.

That didn’t stop Sergey Aleynikov from stealing computer code used by Goldman Sachs to perform high speed trades and giving it to a competitor. The Second Circuit overturned [PDF] his convictions under the National Stolen Property Act and the Economic Espionage Act. They held that the computer code did not constitute a stolen good.

He was never charged under state law.

Under New York state law, larceny requires that the property is physically taken. The criminal code has been updated to include computer code as a form of property, but thieves invariably copy the code rather than physically take it. The task force recommended that New York change state law to make clear that duplicating valuable computer code constitutes larceny.

A sophisticated thief can place a ‘‘skimmer’ device [paywall] on an ATM, which looks like part of the machine but surreptitiously copies the magnetic data whenever a credit card is inserted. Customers get their cash, but the thief gets a copy of the credit card information. In 2011, three men used skimmers to steal [partial paywall] a quarter of a million dollars from 1,500 people. Their use was outlawed in 2008, but only as a misdemeanor. The task force recommends upgrading even owning one to a felony.

The recommendations even extended to the efficiency of the criminal justice system, suggesting that witnesses be allowed to testify before grand juries over a secure videoconference link if they were more than 100 miles away. Adopting this technology would create its own set of problems. In addition to the usual oath, the witness would have to swear that no one else is capable of hearing the testimony and that they aren’t recording it. It could also create an issue of venue if the witness commits perjury or is held in contempt of court. Under the plain language of current law, a statement made to a person in another jurisdiction is considered to be made in both jurisdictions. This means a person could be held in contempt of court by a different court.

Clearly, there is much upgrading to be done.

–Patrick Tricker

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