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Virtual Extortion?

Maybe you saw this story: A Chinese man (whose name is not given) has been sentenced to serve three years in prison for extorting “virtual items and currency” from a “fellow Internet café user.” The currency was worth 100,000 yuan or $14,700.

The man who’s sentenced to three years and the three friends who helped him also “extorted virtual equipment for online games” from their victim. The friends only seem to have been given a fine; the primary extortionist got both a fine and a jail time.

The virtual currency was QQ coins, which are sold by Tencent, a Chinese web portal; QQ coins can be used to buy items in online games pay for using Tencent’s chat client, QQ. According to the PC World story , QQ had 377,000,000 active users at the end of last year, so it’s obviously very popular, which presumably means QQ coins are in great demand.

The story also says Chinese law doesn’t protect virtual property—which I assume means Chinese law doesn’t recognize virtual property as something that has value and can be owned—but the court in this case held that the goods these guys took should be protected “because the victim spent time and money” to acquire them.

I did a post on virtual property a couple of years ago. In that post I basically defined virtual property as property that exists only in digital form and is used only in an online world. I also said digital property only has value in an online world, but that’s not really what I meant; if virtual property has value in an online world, you can sell it to someone for real-world currency. As I’m sure all of us know, there’s a thriving market in virtual goods and currency; Linden Lab’s Linden dollars, for example, are traded on several currency exchanges and various game goods and property are sold on eBay and in other online marketplaces. So if someone creates value in a game world—by, say, buying virtual land and building a castle on it—they can trade that value for real world currency (or for in-world currency, or just keep it and use it themselves).

In that post, I also argued that law should—if it already does not—protect the ownership of virtual property just as it protects tangible, real-world and intangible property that is created and used in the real-world (intellectual property, etc.). I’m really not sure how far U.S. law, for example, has progressed in that direction because that issue that falls more in the area of expertise of lawyers who specialize in property and intellectual property than in the area of criminal law.

As I noted in an earlier post, U.S. criminal law has for some time protected certain types of intangible property. There’s an Oregon case, for example, in which the defendant was prosecuted for computer theft based on copying a password file that belonged to his employer. As far as I can tell, the intangible property U.S. criminal law protects is really property that has value only in the real-world: e.g., passwords to access accounts on a corporate computer system, trade secrets, etc. I’m not saying those laws don’t protect what I’m calling virtual property; I’m saying that issue hasn’t come up yet, at least not in the criminal context.

That led me to wonder how the Chinese case would be handled in the U.S. So let’s assume the same thing happened as happened in China: the primary perpetrator (we’ll call him Mr. X) and his three cohorts beat up the victim (John Doe) to get him to turn over his virtual property.

Under the Model Penal Code—a template of criminal laws drafted by the America Law Institute which shaped contemporary U.S. criminal law—extortion is defined as follows: “A person is guilty of theft [by extortion] if he purposely obtains property of another by threatening to inflict bodily injury on anyone”. Model Penal Code § 223.4(1).

Clearly, what Mr. X and his buddies did would qualify as extortion: We know they didn’t just threaten to beat up John Doe; they actually beat him up. I suspect, though, that they may have told him at the outset that they’d beat him up if he didn’t give them what they wanted and when he refused, they beat him up to show they were serious. And a threat was implicit in the beating and in the cessation(s) of the beating that came when they asked John Doe if he’d changed his mind, i.e., if he was now willing to give them the property or face more physical abuse.

(I’m assuming that the beating they gave him and the beating they let him know would follow if he didn’t give them the property inflicted or would have inflicted bodily injury on him. And since it’s clear they beat him and at least implicitly threatened him with more beating in order to get him to give them the property, they clearly acted for the purpose of obtaining property of another . . . so we have the necessary intent, or mens rea.)

The critical question, then, is whether they obtained “property” from him. The Model Penal Code defines property as “anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.” Model Penal Code § 223.0(6). (If you’re wondering, a chose in action is “essentially a right to sue.”)

I can’t find any reported cases in which the defendant was charged with extortion based on his or her using the threat of physical injury to force someone to surrender virtual property. It seems to me the Model Penal Code’s definition of property—especially intangible property—would encompass virtual property. At least a few states have updated the definition of property used in their criminal statutes, including extortion statutes, to make it clear that digital property is included in it. Here’s the New Jersey statute that defines “property” as the term is used in extortion, theft and other property crimes:

‘Property’ means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.

New Jersey Statutes § 2C:20-1(g). Based on some quick research, it looks like eight or nine other states have added essentially the same language to their definitions of property in their criminal codes.

Do I think the New Jersey legislature meant to include virtual property in this definition? I don’t know, but I’m pretty sure they didn’t, because they added the data and software part of the definition in 1984, long before we had the Internet and, I think, long before even the text-based virtual worlds were popular. It doesn’t really matter whether they meant to include it or not; it looks to me like this language clearly encompasses virtual property.

(Of course, I could see a defense attorney arguing that this definition encompasses only the data that is used to create what we perceive as, and treat as, virtual property. That argument might come up if the defense wanted to show not that virtual property wasn’t property, but that it’s value was much lower than claimed, which could reduce the level of the offense being charged and/or the sentence imposed.)

It looks, then, like what Mr. X and his buddies did could be prosecuted as extortion in the nine or ten states that specifically include data and information within their definitions of property. They could also be prosecuted in states that still have the basic Model Penal Code definition, too, because I think the intangible property alternative would encompass virtual property. I’m not saying the defense can’t argue otherwise; I’m saying I think the prosecution would have a really good argument that the theft of virtual property like the QQ coins could be prosecuted as extortion.

And that brings me to the final question: What would happen in this country if John Doe went to his local police department and told them some guys had beaten him up and taken his virtual currency and virtual property? Would the police take him seriously? Would they launch an investigation? And what about the prosecutor? Would a country district attorney (or an assistant district attorney) be willing to pursue this case and take it to trial or to a plea?

I don’t know. I remember reading a news story several years ago about a fellow who had something similar happen to his virtual property; he went to the local police and, according to what the told the reporter who wrote the story, they told him there was no crime because nothing “real” had been taken. Now, that was several years ago, and police are probably more aware of online worlds and all of this, or at least some police officers are.

Would that, though, translate into an investigation and prosecution? If you’re a police officer and/or a prosecutor and you’re already overwhelmed with cases in which people are stealing and extorting property and inflicting other harms on their fellow citizens in the real, physical world, would you dedicate some of your resources to pursuing a case like this?

By Susan Brenner, Professor of Law and Technology

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