Wednesday, May 10, 2006

Blaming the victim . . . ?

I'm in a hotel, having gotten on a plane a few hours ago to come to DC for business.

On the plane I read the May 15 issue of
The New Yorker, which has an article by Mitchell Zuckoff called "The Perfect Mark." It's about John Worley, Vietnam veteran, ordained minister and former caretaker of a mansion in Groton, Massachusetts. It's really about how Mr. Worley became a victim of Nigerian 419 scammers, Worley seems to have lost around $80,000 to the Nigerian scammers, but the problems they caused him did not end there.

Zuckoff's account of what happened to Worley is old news to anyone who is familiar with the online 419 scams or with the venerable face-to-face cons they derive from. As Zuckoff notes, the dynamic of these cons is based on a greedy victim who is willing to bend the rules (at least) to enrich himself at, he thinks, the expense of someone else. Worley fits that picture; according to the article, he knowingly passed bad checks, posed as an aviator contractor, filed false documents, plotted to avoid paying taxes on the ill-gotten gains he expected to receive and agreed to bribe officials whose cooperation he believed was essential to the successful completion of the endeavor that would enrich him. All of that is typical of those who become embroiled in 419 schemes; I have heard similar -- though less extreme -- stories myself.

What I find interesting about the article is not Worley's entanglements with the Nigerian scammers. It is what happened to him at the hands of the U.S. Department of Justice: His involvement with the scammers led to his being indicted -- and ultimately convicted -- on various counts of bank fraud, money laundering and possession of counterfeit checks. He was tried in a U.S. District Court in Boston and convicted on October 15, 2005. The judge sentenced Worley to serve two years in prison and to make restitution of approximately $600,000 to those he victmized in the course of his entanglement with the 419 scammers (who were, it seems, really from Nigeria).

Why was Worley prosecuted when he seems to have been a victim? That is what I find interesting about Zuckoff's article. He cites statistics gathered from the U.S. Secret Service and other groups for the proposition that 419 scammers take in hundreds of millions of dollars each year (at least, this figure not including losses by those who are too embarrassed to admit their victimization). I agree with his statistics; 419 scamming is a huge problem for countries -- like the U.S. and many European countries -- whose citizens are victimized by the scammers. It's a very good source of revenue for the scammers in Nigeria and elsewhere (low overhead, no risk of being caught and prosecuted unless you're really, really foolish), which is why it is flourishing.

All of that really was not a digression . . . maybe. It may go to the reason why Worley, who would seem to have been a victim of the scammers he encountered, was prosecuted and convicted of violating federal criminal law.

At the end of the article Zuckoff quotes Barbara Worley, John's wife, as saying that the federal prosecutors "knew they couldn't go after the Nigerians, so they just get the person they can reach." She apparently also said that the prosecutors were "trying to stop people in America from getting involved in it (the 419 scam) by making an example" of her husband. I find that contention very intriguing.

It may simply be the rationalization of a woman whose life has effectively been dismantled by the prosecution of her spouse. I can't tell from this article if her comments are merely this or if she hit the nail on the head . . . if Worley really was made a scapegoat in an effort to deter others from following his lead.

I tend to be a little dubious about the proposition that Worley was prosecuted merely to set an example the rest of us should not follow. For one thing, I never heard of the case until I picked up this issue of the New Yorker, quite by chance. That is surprising since I troll for stories like this and have a number of resources that should bring it to my attention. But, hey, maybe I simply missed it.

But if the purpose were to use Worley as a scapegoat, you would think the case would somehow have gotten more publicity . . . publicity beyond the rather specialized cybercrime-geek circles in which I move. But, again, maybe it was an incremental step, a first effort in a strategy precisely of the type Mrs. Worley posits.

Let's go with that theory, because that is what interests me.

I have written articles in which I argue that we should use selected principles of criminal liability -- including the principle that holds one who aids and abets the commission of a crime guilty as if he had committed the crime himself -- to develop a climate in which citizens resist cybercrime, of all types. My articles focus more on encouraging citizens to secure their computers and resist social engineering in an effort to shore up our defenses against "true" cybercrime, i.e., crimes in which the computer plays a central role and may, indeed, be the target of the crime. My concern has been more with shoring up our computerized infrastructure than with preventing more conventional crimes like the 419 scam. What happened to Worley is simply a twenty-first century version of what has been happening to real-world victims for centuries.

But, as the sources cited in Zuckoff's article note, Worley was the target of activity that is taking millions and millions of dollars out of the U.S., Europe and other "victim" countries. The magnitude of that activity may also warrant new and drastic measures . . . such as holding the victim liable for his victimization plus the incidental victimization he inflicted on others he exploited in his efforts to enrich himself.

If the federal prosecutors in Boston were, indeed, using this theory in their prosecution of Worley, then I find that very interesting. In my articles I argue that this phenomonon of "consequent victimization" -- instances in which John Doe causes "harm" to others by his reckless or knowing conduct -- warrants the imposition of accomplice liability upon Doe because he is not merely a victim. He is a victim because in my scenarios his computer has been taken over by hackers who turn it into a zombie in a botnet of thousands; he is a victim in the Worley scenario (if, indeed, this theory was used in the case) because he was exploited by the scammers who took money from him. In both scenarios, however, the "victim" is also a contributor to the victimization of others, an accomplice in their injury. I see no reason why we cannot hold these consequent victimizers liable for the harm they inflict on others.

The only other instance in which I have heard of something simliar's being proposed involves online gambling. The Bush administration has not made any serious effort to criminalize online gambling at the federal level, but there continue to be rumblings -- at both the state and federal levels -- about the desirability of doing so. The problem is that no one can figure out how to make it work: If an online casino located in, say, Antigua is operating legally under Antiguan law, we could not prosecute the operators of the casino, even if we were to make online gambling a federal crime.

The traditional approach to outlawing gambling has been to target those who provide the opportunities to gamble -- the casino operators. That approach works if the casino operators are operating within the territory of the legal system that has outlawed gambling; it does not work if the casino is in the territory of a country that has legalized gambling. It is a basic principle of criminal law that one cannot be extradited from Country A to face prosecution in C for doing something that is legal in Country A but illegal in Country C. The unfairness is evident.

But I have heard suggestions that we could deal with online gambling by prosecuting the gamblers . . . who are here in the U.S. I have always found that an interesting suggestion, as it, too, involves the prosecution of the victim . . . presumably on the theory that the victim is aiding and abetting the illegal activity, gambling.

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