September 22, 2019

Arizona State University

Space, the final frontier … for crime?

When astronaut Lt. Col. Anne McClain allegedly hacked into her estranged wife’s bank account and reportedly stalked her from a NASA computer aboard the International Space Station — claims that were recently made public in the New York Times — she may have committed a cybercrime.

And some are saying it’s one for the history books.

McClain, who is in the middle of a divorce and custody battle, tweeted recently that there was “unequivocally no truth to these claims,” saying she was simply managing the couple’s finances. But many media and news outlets are calling McClain’s alleged actions the first crime committed in outer space.

While NASA is probing the claim, some are wondering how a legal dispute over an act that took place in space will play out in a U.S. courtroom.

ASU Now consulted Joshua Abbott, executive director of Arizona State University’s Center for Law, Science and Innovation at the Sandra Day O’Connor College of Law and an expert on space law, on this otherworldly legal event.

Question: Putting aside the element that the alleged offense was not committed on Earth, what actual crime was committed and how serious is this offense?

Answer: First of all, without all the facts, there’s no way I or anyone else can say for sure that any crime actually has been committed in this case. In general, if a person accesses someone else’s bank account without authorization, that could violate various state and federal criminal statutes against hacking, including the Computer Fraud and Abuse Act. Depending on the circumstances, it could also violate the Electronic Communications Privacy Act or any number of other laws that regulate banking, commerce, the internet or NASA. Some of these laws carry civil or criminal penalties that vary from misdemeanors to felonies with up to $250,000 in fines or up to 20 years in prison. No one’s suggesting that the astronaut in this case might get locked up for a couple of decades, but these are potentially serious allegations.

Q: Where would one go to a court of law for this offense, and how difficult will it be to determine what court it should go to? 

A: Wherever a crime occurs — earth, sea, sky, space or cyberspace — you have to start with finding a court that has jurisdiction. If someone robs a local convenience store, that’s easy — it’s the court in the state where the crime took place. But state and national boundaries mean little on the internet. When the scene of the crime is in cyberspace, figuring out the right court can get complicated. There are whole areas of law devoted just to deciding which laws govern or which court has jurisdiction in a given situation. The fact that this astronaut was in orbit on board the International Space Station (ISS) at the time could make the analysis even more complicated — just the type of scenario law professors love to put on exams to torture law students.

But as it turns out, the nations that built and operate the ISS agreed from the start on clear rules for choosing the jurisdiction to deal with any crimes committed on board. Which makes sense — you don’t drop $150 billion into a project without deciding ahead of time what to do in nearly every imaginable scenario. The rules say that misconduct on board the ISS is governed by the laws of the nation of origin of the person concerned. So because this astronaut is American, this case would be dealt with under U.S. law. (To any law students reading this who have a Conflict of Laws exam coming up — you’re welcome.)

Q: Do you consider this crime to be similar to one that was, say, committed in international waters?

A: Space, which is governed by international treaties, is often compared to international waters. In the movie “The Martian,” the marooned astronaut, based on that reasoning, proclaims himself the first space pirate for commandeering a lander, even calling himself Captain Blondebeard. But it’s not a perfect comparison. Maritime law, which governs matters at sea, is a separate body of law with its own long history and specialized rules. By comparison, so-called “space law” is still in its infancy, sometimes borrowing ideas from other areas but developing on its own course in response to needs and disputes that relate to space. Because of that, if issues in this case get decided by a court at some point, that court’s decision could become an important precedent in any future conflicts that arise in space. So it’s worth keeping any eye on this one.

Q: Given that there are no precedents for a case like this, how difficult is it to establish a case and precedent for sentencing?

A: Not too difficult, actually. If charges get filed, any decisions would flow from existing precedents in ordinary cases. It’s a common and tempting mistake to think that because of some new aspect to a case — such as some new technology that’s involved — that we’re on entirely new ground and have to start from scratch. But that’s almost never the case.

Our legal system is designed to deal with novel situations through reasoning by analogy to past cases. It’s how we train law students to think from their first day in law school. The more new technologies change how we live, work and interact, the more novel situations like this will inevitably come up — and the more we’ll need good lawyers to help us navigate that new territory. It should be no surprise to anyone familiar with ASU that the Center for Law, Science and Innovation at ASU’s Sandra Day O’Connor College of Law is a world leader in addressing many of the challenging legal issues that arise from new and emerging technologies.