While we were chatting about virtual crimes a few months back, cybercrime guru Orin Kerr (who blogs over at TVC) pointed me to the case of People v. Johnson, 560 N.Y.S.2d 238 (1990). What a fascinating case -- it stands for the remarkable proposition that mere knowledge of a 14 digit number can constitute criminal possession of stolen property. What 14-digit numerical properties do you have in your head? Might I offer you 123321456787654? Do you want it? Can you be sure it isn't contraband?
The defendant in the Johnson case was arrested for selling stolen AT&T long distance numbers for $8.00 at Port Authority in NYC. He was charged with possession of stolen property. The problem with that charge was that the indictment didn't allege any tangible property that was stolen -- Johnson rightfully owned the slip of paper on which three numbers were written. According to a prior 1989 case, People v. Molina, the stolen property statute did not apply to the mental possession of numbers. While the Molina court acknowledged that what the defendant was doing was wrong, it stated that "the mere isolated knowledge of those numbers, essentially the situation here, has not yet been defined by the Legislature as a crime." According to the Johnson court, however, the Molina decision demonstrated a lack of logic:
On the facts before this court, there is little, if any, relevance to the form in which the telephone credit card number is possessed. Under the Molina rationale, a person who steals a telephone credit card would be criminally liable if he or she is found in possession of the card. The thief would escape liability, however, by either recording the card number on a piece of paper owned by the wrongdoer and then destroying the card, or by committing the number to memory after destroying the card. The lack of logic in that thesis is evidenced by the following question: is the number with the card of any more value to a person intent on placing phone calls without charge than is the number without the card? The number itself is what is crucial, and not who has the superior possessory interest in the paper on which the number is recorded, or whether the number is written as opposed to being memorized.
If you're in mental possession of 123321456787654, though, you're probably safe:
While a telephone credit card number is a "thing of value," care must be taken to be sure that the number in question is indeed such a number. A court must be satisfied that the number possessed is not some innocuous number, innocently had by a defendant. Such a judgment can be made, of course, only in the context of attending circumstances.
For the moment, for me at least, 123321456787654 is an innocuous number that I innocently possess. One day, though, I may find out that it happens to be someone else's number. If that happens, I suppose I'll need to return 123321456787654 to its rightful owner.
Exactly how will I do that?