New Jersey Law Journal August 1, 2011

HEADLINE: Internet Crime and the Elderly;
Enhanced penalties could prevent online targeting of senior citizens

BYLINE: Jonathan Bick Bick, of Brach Eichler in Roseland, is an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

The use of the Internet allows for lower transaction costs and provides greater connectivity to the outside world for lawful businesses. Unfortunately, it allows a similar force multiplication for Internet crime.

As discussed below, senior citizens are disproportionately affected by Internet crime, and our current laws do not protect them. As their use of the Internet increases, so do their chances of falling victim to online scams.

It has been argued that one reason white collar criminals engage in Internet targeting of the elderly is the fact that said criminals do not face enhanced penalties despite the fact that senior citizens are easier targets than the general population. The elderly are specifically protected from physical crimes such as battery or assault in many jurisdictions, by enhanced penalties for perpetrators of such crimes. But no such enhanced protection exists regarding Internet crime, under either state or federal law.

For example, while the U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) (2009) provides for an increased sentence if the defendant knew or should have known that a victim of the offense was elderly, Application Note 2 states that the enhancement would not apply in a case in which the defendant and the elderly victim were not in physical contact. Thus, no enhanced penalties for selling fraudulent securities by email to the general public and one of the victims happened to be senile.

U.S. law and society generally recognize the special needs of older citizens. The most important aid to these citizens is the Social Security Act of 1935 as amended by 42 U.S.C. 7 (Public Health and Welfare), wherein beneficiaries receive old-age benefits each month under federal Old-Age, Survivors, and Disability Insurance. Citizens who are age 65 or older qualify for a full benefit payment by having been employed for the mandatory minimum amount of time and by having made contributions to Social Security.

People are said to be "elderly" when they reach the age of 60 or 65 because those are the ages at which most people retire from the workforce. Most statutes have accepted the chronological age of 65 years as a definition of an elderly or older person.

Senior citizens are most often subject to four types of Internet crime: fraud, illegal access to computer networks, vandalism and identity theft. These cases often have involved extensions of state law concerning fraud and trespass, and are covered by traditional criminal statutes. While the 1984 Computer Fraud and Abuse Act created seven computerspecific offenses for unauthorized access to computers, it rarely applies only to Internet crimes against the elderly.

The Bureau of Justice Statistics reported in 2010 that three incidents of Internet crime are perpetrated against the elderly for every one of incident of violent crime. The FBI reports that these white collar crimes, such as Internet sweepstakes schemes, specifically target seniors because of their access to liquid assets, and because their deterioration in cognitive ability makes them more susceptible to Internet fraud than the general public. However, others suggest the lack of enhanced penalties is to blame.

According to the FBI's website, white collar Internet fraud targets the elderly more than the general population. The site lists the most prevalent white collar crimes against seniors, as: health care fraud/health insurance fraud, counterfeit prescription drugs, funeral and cemetery fraud, fraudulent "antiaging" products, investment schemes and reverse-mortgage scams.

Most Internet fraud schemes have telemarketing fraud antecedents. The Internet allows those schemes to be implemented easier, faster and at a lower cost than their telemarketing predecessors because less human intervention is required.

Internet white collar crime against the elderly is often combined with telemarketing. In a mass prosecution of telemarketing and Internet companies soliciting charitable contributions in return for prizes, the Federal Trade Commission found that 85 percent of a randomly selected group of victims were age 65 or older.

Under 18 U.S.C. § 2326 offenders face enhanced penalties if they either target a person over the age of 55 or victimize a group of 10 or more persons over the age of 55 through several different fraud-related offenses, but only if committed in connection with a telemarketing scheme. The statute defines "telemarketing" as necessarily involving the "use of one or more interstate telephone calls" in the commission of the crime. This definition has been used to exclude fraudulent schemes perpetrated by Internet.

States have enacted new and additional laws in reaction to crime against the elderly, including special criminal offenses with enhanced penalties and sentences. Elder victim criminal statutes provide a range of punishments from misdemeanor to felony, fines and/or jail time. Statutes associated with crimes against senior citizens have been included in a broad range of criminal statutes, including those that proscribe assault and battery, sexual assault, and property crimes such as theft and fraud. A few states have even included the elderly in their "hate crime" statutes.

Typically, statutes associated with crimes against the elderly include special penalties, such as double or treble damages, for those who defraud elderly consumers. Additionally, minimum sentencing ranges may be set for criminals convicted of committing crimes against seniors. Sentencing schemes have also been enhanced when the victim of the crime is an elderly person. There are separate penalty schemes for entities and workers who abuse the elderly in institutional settings such as nursing homes. Some statutes provide for civil redress of elder abuse and allow for compensatory and punitive damages, costs and attorney's fees.

The majority of the penalty enhancements that have been enacted are separate from underlying penalties and are usually due to a public policy of deterring bias crimes (see 18 U.S.C. § 2326, "Enhanced penalties"). Most state and federal enhanced penalties for "bias" crimes included age as one of the protected classes of victims. Both state and federal enhanced penalties characteristically apply to violent crimes or crimes involving physical damage to property, such as vandalism (see N.Y. Penal Law § 485.05 (McKinney 2010) and federal law 18 U.S.C. § 2326 (2006)). Both provide enhanced penalties for crimes targeting elderly victims but narrow the application of the enhanced penalties, limiting their application to certain crimes.

American efforts at dealing with Internet crime against the elderly continue to be dominated by reactive legislation and responsive recasting of existing criminal law actions to deal with Internet crimes. One novel approach would involve the registration of seniors' Internet addresses and enacting enhanced penalties for knowingly targeting the elderly via the Internet.