Friday, January 23, 2009

Technology as an Aggravating Factor

As you may have seen, the Supreme Court rather recently granted certiorari in U.S. v. Abuelhawa, 523 F.3d 415 (U.S. Court of Appeals for the Fourth Circuit 2008). That, of course, means the Court will hear arguments on whether the Fourth Circuit’s decision is correct.

Abuelhawa was convicted of violating 21 U.S. Code § 843(b), which makes it a crime “knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of” any federal drug crime.

Abuelhawa’s conviction was based on his using his cell phone to call a drug dealer and essentially order a delivery of cocaine. U.S. v. Abuelhawa, supra.

He appealed his conviction to the Fourth Circuit, arguing that if he had walked up to the drug dealer on the street and bought cocaine from him in person, all he could be charged with was violating 21 U.S. Code § 844(a), which is a misdemeanor. Abuelhawa claimed it was illogical and excessive to charge him with a felony under § 843(b) simply because he used a cell phone to arrange the purchase. He lost, but the Supreme Court has agreed to hear the case, so maybe the Justices think that result is not correct, after all.

While Abuelhawa’s case has nothing to do with computers, as such, § 843(b) does apply if someone uses a computer to facilitate the commission of a federal drug crime. In U.S. v. Long, 2006 WL 689125 (U.S. District Court for the District of Wisconsin 2006), for example, the § 843(b) charge was based on the defendant’s using email to facilitate federal drug crimes.

This post isn’t really about Abuelhawa’s case. It’s about using technology as a factor eitehr to aggravate the severity of the offense someone is charged with or using it to aggravate the sentence someone receives after being convicted of what is essentially a generic crime.

As I’ve pointed out here and elsewhere, computer technology can have an impact on how we commit traditional crimes, like fraud or theft. We can incorporate that impact into the law in either of two ways: One is to adopt new, cyber-specific criminal laws; so, as I noted in an earlier post, we wind up with computer theft statutes that make it a crime to steal a computer. I, for one, don’t see that we always (even often) need to create new, computer-specific laws in order to address the effects of computer technology. In many instances we can address the impact of computer technology by simply revising how we define a traditional crime.

As I noted in an earlier post, for example, the use of computers can alter how we commit theft. In the real-world, theft is zero-sum: I take your laptop, which means I have it and you do not. In the digital world, I can copy your data, which means I have it and so do you; the problem, of course, is that you have been deprived of a quantum of the value of the data, i.e., the ability to exercise sole control over its possession and use. That kind of theft often won’t work under traditional theft statutes because they spoke of stealing “tangible property” and/or of taking property with the intent to permanently deprive the owner of its possession and use. But, as I’ve noted here and elsewhere, we don’t need to adopt a new “computer theft” or “data theft” statute to address that kind of activity; we can simply expand the scope of our theft laws so they encompass both kinds of theft, zero-sum and non-zero-sum theft.

That brings me to the other way we can incorporate the impact of computer technology into our criminal law. If we take the approach to theft I outline above, we simply bring computer theft into the law as a type of generic theft. That means the penalties for computer theft will be the same as the penalties for traditional theft of tangible property. Some people will argue that the penalties for computer theft should be higher because a criminal can cause more damage by using a computer to commit theft. I can copy the rightful owner’s data and share it with 5, 10 or 100 people; I can steal data from a lot of people in a very short period of time, something a real world thief could not do.

You get the idea, I’m sure. And that brings me to the other option: Instead of creating new, computer-specific crimes, we could address the incremental “harm” the use of computer technology incorporates into the commission of traditional crimes like fraud and theft by making the use of the technology an aggravating factor at sentencing. Making the use of certain tools an aggravating factor is something we already do with weapons, for example. We make the penalty imposed for the commission of certain crimes – robbery, say – greater if you used a gun in committing the crime.

Guns and other weapons were made aggravating factors in sentencing because they create the risk that someone will be hurt or killed in the course of my committing what is really a property crime. So, some criminal tools aggravate sentences because they pose a source of danger to victims and bystanders. Other criminal tools aggravate sentences or the level of the offense someone is charged with under a very different theory – the theory responsible for § 843(b).

The premise of § 843(b) seems to be that the use of communications technology aggravates the offense level because such technology lets a drug dealer commit more crimes than he or she can do otherwise. A drug dealer can use cell phones and/or computers to organize and run his drug organization and, as in the Abuelhawa case, to arrange drug buys more efficiently than he might otherwise be able to do. That makes sense, I think, at least to some extent. Abuelhawa is arguing that while that makes sense when it comes to the person who is selling drugs, it makes no sense at all for someone like Abuelhawa, who only used his cell phone to buy drugs. That seems to be the issue the Supreme Court will hear, so we’ll see how they parse that out.

If they uphold Abuelhawa’s conviction, the decision will presumably validate the premise that aggravating a sentence or an offense level based on the use of technology legitimately applies regardless of what your role in the commission of the crime was. So if, say, a state wanted to make the use of computer technology an aggravating factor -- in sentencing or in setting the offense level – for those charged with violating the laws against prostitution, the aggravating factor could be applied both to the person who was running the prostitution operation (the pimp) and to customers who used email or other computer communications to set up “dates” with the prostitutes. That's a very simple example. If the Court upholds Abuelhawa’s conviction, the principle that establishes could be used to incorporate the use of technology as an aggravating factor into a variety of criminal statutes, which might or might not be a good idea, depending on how it was done.

If, on the other hand, the Supreme Court buys Abuelhawa’s argument and holds that the use of technology as an aggravating factor can only be applied to the actual perpetrator of the crime – the person who sells drugs or panders prostitutes, say – that would prevent the technique’s being used as expansively, but it could still be used to increase the exposure the primary perpetrator faces, if caught.

Or the Supreme Court’s decision in the case may have little effect, in practice. I don’t know that there’s a great deal of interest in expanding the use of computer technology as a sentence or offense aggravator, and I don’t know that there needs to be.

I can see an argument for doing that with certain crimes, such as fraud. Using computer technology gives fraudsters the ability to commit a lot more fraud than they could do if they had to contact each of their victims individually, at least in the initial contact. I don’t think it makes sense to use computer technology to increase the offense level, but I can see it as a relevant factor in sentencing.

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