Self-Checkout Making It Much Harder To Prosecute Shoplifting

Attorney Mark D. Rasch is the former head of the U.S. Justice Department's computer crime unit and today serves as Director of Cybersecurity and Privacy Consulting at CSC in Virginia.

Has self-checkout changed the laws of shoplifting? By making the consumer responsible not only for selecting inventory and paying for purchases but also for checking and bagging their own items, we may have outsourced enforcement of theft and larceny laws to such a great extent that we may limit our ability to prosecute shoplifters.

As retailers—including Albertsons LLC and Kroger—rethink whether self-checkout still makes long-term strategic sense, loss prevention and other security considerations are shifting. It's always been known that self-checkout systems would theoretically make theft easier, so these lanes have been accompanied by more security cameras, anti-theft tactics and closer supervision than staffed lanes. But the legal issue that self-checkout lanes can make it easier for caught shoplifters to escape prosecution, now that's a new one.

Associates assigned to self-checkout supervision are specifically charged with theft detection—and that's where things get legally dicey.

Larceny, theft and shoplifting are all criminal offenses related to the "taking" of property without a right to do so. Under the common law definition, larceny is the taking and carrying away of the tangible personal property of another with the intent to permanently deprive him or her of its possession. You know, stealing. But the law requires proof beyond a reasonable doubt of a defendant's intent to permanently deprive. An accidental or inadvertent taking is not a crime. Thus, if a consumer goes shopping with his spouse and says "Hey, hon, can you please pay for this candy bar for me?" and the spouse does not hear this and you walk out of the store with the unpaid item, there is no deliberate theft, even though the store was not paid.

As retail payment systems become more complicated, we open up the possibility that not only will there be more inadvertent non-payments but actual shoplifters will be able to take refuge in the complexity of the technology to create doubt.

One advance in the law relating to shoplifting is the fact that, at least in most U.S. jurisdictions, it is no longer necessary to wait until the consumer leaves the store to make out a case for theft. Acts consistent with an intent to steal—such as deliberately changing stickers or barcodes, removing anti-theft devices, concealing merchandise and similar acts—have all been held sufficient to support convictions for larceny, even if the defendant has not left the store. But these acts have to be pretty egregious.

Customers have successfully sued retailers for wrongful arrest and detention (and been awarded thousands of dollars by juries) when scanners or other devices wrongfully flag them as shoplifters. I assume we have all been in a situation where, after making purchases and having the anti-theft sensors deactivated, we have walked through the detectors and "beeped," only to have the devices deactivated again, and beep again. Technology is not perfect, but what is important is how we react to these technologies. Yes, training and awareness.Which brings us back to the self-service kiosk. It is easy to imagine situations where a consumer, unfamiliar with the technology, fails to adequately scan all items in a basket. Recently, I was scolded by a machine when I placed scanned items on the floor next to me while I was drinking coffee, talking on the phone, fumbling for my wallet and scanning items. If an item was inadvertently not scanned, and the customer attempted to leave the store, would this support a prosecution for theft?

There may be no need for someone to, as the character Pinto did in the movie Animal House, shove pounds of steak into their pants. Rather, they can simply put a bag with the steaks on the floor next to the self-service register and then "forget" to scan the contents. Systems that rely on comparing the weight of items on the belt to what that product is supposed to weigh, by definition, rely on the consumer to place the items on the belt. Video or other surveillance technology can find some obvious frauds (like our friend Pinto), but not more subtle ones.

The problem is twofold. Not only is there a significant possibility that innocent grandmothers may get pinched for misusing the technology, but there is a similar likelihood that the technology's apparent complexity may act as defense to actual shoplifters. To minimize these problems, stores may be forced to add more self-service assistants—or, as we might call them, cashiers. When assessing the costs or savings associated with technologies, adopters should consider all of these costs.

In the late 1970s, the U.S. Air Force was reportedly experimenting with cheap, disposable unmanned drone aircraft, similar to those used by Israel to fly over the battlefield, take snapshots, and return them for processing (yes, film cameras). The Air Force kept adding functionality to the cheap drones (real-time imagining, delivery of ordinance, stealth, active defense, speed) so that, in the end, the drone became so heavy and expensive that the service added one final item—a pilot.

This is not meant to be an indictment of self-service kiosks. Indeed, I use them all the time, and sometimes prefer them to human beings. But they are not without costs—and sometimes these costs include those associated with the inability to prosecute more clever shoplifters. And this has to be factored in to the value proposition.

If you disagree with me, I'll see you in court, buddy. If you agree with me, however, I would love to hear from you.