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Self-Service Shifts Legal Risks, May Let Customers Off The Hook

August 1st, 2013

The same may be true for self-service POS terminals, including self-checkout, barcode-scanning apps and other remote payment options. A customer who attempts to use a self-scanner may face criminal charges for theft, shoplifting or worse if an item he tries to purchase doesn’t scan properly.

This may be particularly egregious in places like Montgomery County, Md., which discourages the use of store-provided plastic bags by charging a nickel for each one. Thus, a consumer is likely to simply pick up an item, run it past the scanner, and place it into his or her backpack or purse. If the item doesn’t properly scan, is the consumer then guilty of theft? After all, she put an unpaid item into her pocket or purse!

The problem is even worse when consumers provide the POS device themselves. Take for example Apple’s (NASDAQ:AAPL) EZ-Pay application. It permits consumers to use their own devices—iPhone, iPad or iPod—to scan and pay for items in the Apple Store.

Now, consumers may or may not have the sophistication to do this properly. If a consumer does not properly scan and pay for an item, or if the device, hardware, software or connection does not work as intended, is the consumer then guilty of shoplifting?

I think not. By expecting the consumer to be both consumer and merchant, and to fulfill the merchant functions, we eliminate an essential check and balance, and a clear assignment of roles, responsibilities and liability. When we blend these roles we create an untenable situation.

But not everyone agrees, which is clearly demonstrated by the arrest and sentencing last year of an 18-year-old college student for shoplifting at a New York City Apple Store under exactly this situation.

The problem will get worse as we embed payment technologies into devices. If a consumer swipes a payment device at a subway turnstile, and the turnstile fails to debit (or the device fails to acknowledge the debit) the fare, is the consumer guilty of theft of services? If the device has been altered or hacked, is the consumer (absent proof that they hacked or were aware of the hack) liable for theft?

Technology always blurs lines. The law needs to keep up. Until then, we are all going to be expected to do not only our jobs, but the jobs of the bank, the insurance company, the Apple store, and the meter maid. If I am going to do that, I want a bigger paycheck.

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.


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