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?
Comments on 123321456787654:
Well considering that I can conceive of any number from -infinity to +inifinity I guess every single credit card number ever established or that will ever be established is currently in my mind.
I'm guilty ?
Posted Aug 17, 2005 2:30:12 PM | link
If you start trying to sell 'em you are.
Posted Aug 17, 2005 3:00:13 PM | link
If it was -your- number, we wouldn't even have this discussion.
Posted Aug 17, 2005 3:34:51 PM | link
The Supreme Court of Canada issued a decision on a similar issue in http://canlii.org/ca/cas/scc/1988/1988scc43.html”>R v. Stewart  1 S.C.R. 963. The accused was hired to obtain the names, addresses and telephone numbers of the hotel's employees by someone he assumed was associated with a union seeking to organize the employees of that hotel. On the agreed facts, only the information was taken, not any tangible object. The question facing the court was, inter alia, whether confidential information can be the object of theft under the Criminal Code. Because of the wording of statute, the court had to decide if the information constituted “anything” that could be stolen:
To summarize in a schematic way: "anything" is not restricted to tangibles, but includes intangibles. To be the subject of theft it must, however:
1)be property of some sort;
2)be property capable of being
(a) taken--therefore intangibles are excluded; or
(b) converted--and may be an intangible;
(c) taken or converted in a way that deprives the owner of his proprietary interest in some way.
Confidential information should not be, for policy reasons, considered as property by the courts for the purposes of the law of theft. In any event, were it considered such, it is not capable of being taken as only tangibles can be taken. It cannot be converted, not because it is an intangible, but because, save very exceptional far-fetched circumstances, the owner would never be deprived of it. [R.v. Stewart]
What I find interesting about this decision, is that it seems to leave the door open for intangibles (a Bone Crusher, mayhaps?) which can be “converted in a way that deprives the owner of his proprietary interest in some way”. Assuming, of course, that the owner of the Bone Crusher had any proprietary interest...
Posted Aug 17, 2005 5:53:51 PM | link
IANAL, but given societies desire to protect private property Judges will rule that intangibles that (1) can be distinctively isolated and (2) have a certain society or market value in isolation can be protected whether (a) the wording of current law covers the new formof intangibles or (b) no precedents exists.
So, the legal user of #123321456787654 Bonecrusher can successfully sue someone for “stealing” and depriving the rightful legal user of said Bonecrusher whether or not there are specific laws to cover this. It appears the Asian courts has liberally extend property laws to include virtual properties too.
Posted Aug 17, 2005 8:51:06 PM | link
Peter -- Thanks -- I've got to add that to my list of interesting Canadian cases. :-)
The link above had a glitch -- this is a trimmed version.
It seems more akin to Molina than Johnson -- meaning the outcome seems sensible. The policy concepts at play in this one, though, remind me of some recent privacy/property arguments. See, e.g., Pamela Samuelson "Privacy as Intellectual Property" 52 Stan. L. Rev. 1125 (2000).
Posted Aug 18, 2005 6:33:39 AM | link
While I think this is pretty tenuously topical for TN, I can't help but respond. The closest "pure information" parallel I can think of that is already legislated for (and addresses in source code) is "ownership" of genetic sequences: pure strings of base-4 numbers, and a second number (a pointer to location). And you can express books and code, and music and pictures (albeit imperfectly for the latter two) in purely numeric terms. Yes, it is what the numbers represent in these latter cases that matters, but there will be no ownership of numbers per se: just their role as representations. See under "map" and "ground".
Posted Aug 18, 2005 7:48:05 AM | link
Yes -- information property can be translated into numbers, so in a way, you could say that numbers are protected. For some thoughts along those lines, see this by Eben Moglen. But you've got a pretty good comeback to that, I think.
The interesting thing here is the 14 digit-numbers weren't subject to any traditional form of intellectual property right.
Posted Aug 18, 2005 8:19:22 AM | link
I just wanted to take a moment to point out some irony.
"or by committing the number to memory after destroying the card. The lack of logic"
When schooling someone about their logic, one should be sure one is not lacking in their own.
Posted Aug 18, 2005 1:49:52 PM | link
> "Confidential information should not be, for policy reasons, considered as property by the courts for the purposes of the law of theft."
Are there any forms of information that generally can be considered property (for policy reasons for the purposes of the [Canadian] law of theft)?
If so, what is it about information being confidential that excludes it from legal protection against theft? Isn't that precisely the kind of information for which you'd most want some legal recourse or recompense against theft?
I must be missing something....
Posted Aug 18, 2005 5:59:09 PM | link
Bart > I must be missing something
The Supreme Court is specifically interpreting the scope of the criminal law of theft (s.283 of the Criminal Code). Criminal statutes are interpreted restrictively (for constitutional reasons...). This is not to say that there is not legal recourse, either civilly (e.g. trade secrets, damages, trespassing, etc.) or criminally under a different section (e.g. fraud, or any other laws that may have been broken in the course of obtaining the information such as unauthorized access to a computer, etc.)
> Are there any forms of information that generally can be considered property (for policy reasons for the purposes of the [Canadian] law of theft)?
One form of information the court specifically mentions is a bank account:
I see no reason to construe "anything" in s. 283(1) with stress on "thing", and I think the word should be construed in its broad sense and to mean exactly what it says, that theft can be committed of "anything" that was property. That would include a bank credit in a bank account--which any normal person having one would describe by saying that "he had money in the bank". I think it would be difficult to convince him otherwise, even if in strict domestic law all he had was the right to draw money from the bank in cash, by banknotes, by cheque or by transfers elsewhere. [R.v.Stewart]An interesting question for TN is how exactly this differs from accumulated funds in Linden dollars or Project Entropia Dollars. I think there is a strong argument to say that it doesn't, depending on the rights structure in a given VW.
Posted Aug 19, 2005 2:03:21 PM | link
Just to echo that comment on the specificity of the Canadian case with respect to my original post -- what Johnson (and Molina) did in selling the unauthorized long-distance access codes for profit was clearly wrong and worthy of some sort of criminal punishment. My problem here is with the application of a "stolen property" law to the mere knowledge of a 14-digit number. Obviously, that kind of reasoning opens up a whole can of theoretical worms.
The law should be careful about respecting categories such as "stolen property," refusing to stretch basic concepts even when the prosecutor flubs the indictment yet most people would agree the conduct at issue is wrong. If we're willing to create incoherent legal categories on a whim, we might as well just have one crime called "doing bad things" and be done with all the legal pretense. As I said in the previous post, this is essentially where Bill Stuntz says the federal criminal law is headed.
Posted Aug 19, 2005 8:45:10 PM | link
Peter, thank you for the clarification.
If I'm not reading too much into your citation, it almost sounds as though the court is carving out protections ad hoc ("bank accounts yes, trade secrets no"), rather than finding a general principle under which information generally may be protected. (I wonder if this is what greglas means by "incoherent legal categories" -- sure sounds like it!)
I suppose the legal waters must be sufficiently muddied before some solon will dredge them out. The question is, how much damage will be done until then to the innovators and to the virtual industries they might have been able to create in a less turbulent environment?
Posted Aug 20, 2005 12:06:26 AM | link