Internet Crime and the Elderly

And it provides the means for customers in various market sectors to truly interact with merchants, although not personally but at a level of directness and immediacy when such access is promoted that traditionally has not been typical in face-to-face, customer-corporate dealings.

Unfortunately, the same technology that allows these perks also allows a similar force multiplication for Internet criminals, including charlatans and other rogues who prey on some of the most vulnerable among us ' the elderly.

It has been argued that one reason white-collar criminals engage in Internet targeting of the elderly is because these criminals do not face enhanced penalties despite the fact the elderly are easier targets than the general population.

The elderly are protected from physical crimes such as battery or assault in many jurisdictions by enhanced penalties for perpetrators of such crimes. The elderly, however, have no such enhanced protection against Internet crimes.

No U.S. or State-Specific Statutes

Neither state nor federal law has enhanced penalties for those targeting the elderly online. For example, while the U.S. Sentencing Guidelines Manual, at '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.

Needs Recognized, But Not
All Protected

U.S. law and society 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 USC 7 (U.S. Code, Title 42, The Public Health and Welfare), wherein beneficiaries receive old-age benefits each month under federal Old-Age, Survivors, and Disability Insurance. Citizens who are age 66 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 “elderly,” or older, person.

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

Net Schemes Mimic Phone Schemes

Most Internet fraud schemes have telemarketing fraud design antecedents. The Internet allows those schemes to be implemented more easily and more quickly, and at less 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 (FTC) found that 85% of a randomly selected group of victims were age 65 or older (see, www.ftc.gov/reports/Fraud/fraudcon.shtm).

Non-Net Guards for Elderly Exist

Assaults and Hate Crimes

States have enacted some new and additional laws in reaction to crimes against the elderly, including categories of special criminal offenses that carry enhanced penalties and sentences. Elder-victim criminal statutes provide a range of punishments ' from misdemeanor to felony, and, with these, fines and jail time, or combinations of these punishments.

Statutes associated with crimes against the elderly 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 included the elderly in their “hate crime” statutes.

Double and Treble Damage Awards

Typically, statutes associated with crimes against the elderly include special penalties for people who defraud elderly consumers, such as double or treble damages. Additionally, minimum sentencing ranges may be set for criminals convicted of committing crimes against the elderly.

Institutional Abuse of the Elderly

There are also separate penalty schemes for entities and workers who abuse the elderly in institutional settings such as nursing homes. Some statutes provide for civil redress in cases of elder abuse, and allow for compensatory and punitive damages, costs, and attorney fees.

Penalty Enhancements

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 U.S. Code ' Section 2326: Enhanced Penalties). Most state and federal enhanced penalties for “bias” crimes, for instance, typically have included age as one of the protected classes of victims. 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)). State and federal law provide enhanced penalties for crimes targeting elderly victims, but narrow the application of the enhanced
penalties limiting their application to certain crimes.

Fifty-five and 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. It is notable that this definition has been used to exclude fraudulent schemes perpetrated by Internet.

Internet Crimes and the Elderly

The elderly are most often subject to three types of Internet crimes. These crimes are:

1. Fraud;
2. Illegal access to computer networks; and
3. Vandalism.

Cases that fall into these categories of crime 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 (CFAA) created seven computer-specific offenses for unauthorized access to computers, the statute and its provisions rarely applies only to Internet crimes against the elderly.

White-collar Internet fraud targets the elderly more often than it targets the general population, according to the FBI's website. This site lists the most prevalent white-collar crimes against seniors. The categories are:

• Health Care Fraud/Health Insurance Fraud;
• Counterfeit Prescription Drugs;
• Funeral and Cemetery Fraud;
• Fraudulent “Anti-Aging” Products;
• Investment Schemes; and
• Reverse Mortgage Scams.

Conclusion

Efforts in the United States to deal 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 people and businesses that knowingly target the elderly over the Internet.

No one can deny the benefits that the Internet has brought society in general, and to e-commerce in particular.

Use of the Internet, for instance, allows lower transaction costs and provides greater connectivity to the outside world for lawful businesses.

It allows advertising that targets custom markets.

And it provides the means for customers in various market sectors to truly interact with merchants, although not personally but at a level of directness and immediacy when such access is promoted that traditionally has not been typical in face-to-face, customer-corporate dealings.

Unfortunately, the same technology that allows these perks also allows a similar force multiplication for Internet criminals, including charlatans and other rogues who prey on some of the most vulnerable among us ' the elderly.

It has been argued that one reason white-collar criminals engage in Internet targeting of the elderly is because these criminals do not face enhanced penalties despite the fact the elderly are easier targets than the general population.

The elderly are protected from physical crimes such as battery or assault in many jurisdictions by enhanced penalties for perpetrators of such crimes. The elderly, however, have no such enhanced protection against Internet crimes.

No U.S. or State-Specific Statutes

Neither state nor federal law has enhanced penalties for those targeting the elderly online. For example, while the U.S. Sentencing Guidelines Manual, at '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.

Needs Recognized, But Not
All Protected

U.S. law and society 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 USC 7 (U.S. Code, Title 42, The Public Health and Welfare), wherein beneficiaries receive old-age benefits each month under federal Old-Age, Survivors, and Disability Insurance. Citizens who are age 66 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 “elderly,” or older, person.

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

Net Schemes Mimic Phone Schemes

Most Internet fraud schemes have telemarketing fraud design antecedents. The Internet allows those schemes to be implemented more easily and more quickly, and at less 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 (FTC) found that 85% of a randomly selected group of victims were age 65 or older (see, www.ftc.gov/reports/Fraud/fraudcon.shtm).

Non-Net Guards for Elderly Exist

Assaults and Hate Crimes

States have enacted some new and additional laws in reaction to crimes against the elderly, including categories of special criminal offenses that carry enhanced penalties and sentences. Elder-victim criminal statutes provide a range of punishments ' from misdemeanor to felony, and, with these, fines and jail time, or combinations of these punishments.

Statutes associated with crimes against the elderly 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 included the elderly in their “hate crime” statutes.

Double and Treble Damage Awards

Typically, statutes associated with crimes against the elderly include special penalties for people who defraud elderly consumers, such as double or treble damages. Additionally, minimum sentencing ranges may be set for criminals convicted of committing crimes against the elderly.

Institutional Abuse of the Elderly

There are also separate penalty schemes for entities and workers who abuse the elderly in institutional settings such as nursing homes. Some statutes provide for civil redress in cases of elder abuse, and allow for compensatory and punitive damages, costs, and attorney fees.

Penalty Enhancements

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 U.S. Code ' Section 2326: Enhanced Penalties). Most state and federal enhanced penalties for “bias” crimes, for instance, typically have included age as one of the protected classes of victims. 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)). State and federal law provide enhanced penalties for crimes targeting elderly victims, but narrow the application of the enhanced
penalties limiting their application to certain crimes.

Fifty-five and 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. It is notable that this definition has been used to exclude fraudulent schemes perpetrated by Internet.

Internet Crimes and the Elderly

The elderly are most often subject to three types of Internet crimes. These crimes are:

1. Fraud;
2. Illegal access to computer networks; and
3. Vandalism.

Cases that fall into these categories of crime 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 (CFAA) created seven computer-specific offenses for unauthorized access to computers, the statute and its provisions rarely applies only to Internet crimes against the elderly.

White-collar Internet fraud targets the elderly more often than it targets the general population, according to the FBI's website. This site lists the most prevalent white-collar crimes against seniors. The categories are:

• Health Care Fraud/Health Insurance Fraud;
• Counterfeit Prescription Drugs;
• Funeral and Cemetery Fraud;
• Fraudulent “Anti-Aging” Products;
• Investment Schemes; and
• Reverse Mortgage Scams.

Conclusion

Efforts in the United States to deal 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 people and businesses that knowingly target the elderly over the Internet.