Evan Schuman's StorefrontBacktalk

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.