Do We Need a New Law to Make Stealing Illegal?

Paul J. Larkin, Jr. / Daniel Dew /

Everyone agrees that stealing should be a crime. Theft has been an offense in every society that has recognized property rights. Theft was a crime under the English common law; every state outlaws theft today; and theft of federal property (or property in interstate commerce) is a crime under federal law.

A new bill, the Metal Theft Prevention Act (S. 3631), would make stealing metal from critical infrastructures a federal offense punishable by 10 years’ imprisonment. Stealing is already a crime, so it is reasonable to ask: Is this bill necessary? Why does theft of metal from critical infrastructures demand special treatment?

Theft of metals used in the nation’s critical infrastructure has been in the news lately. Does that matter? Maybe. Suppose there is a particular metal—let’s call it Bellsium, after Alexander Graham Bell—that is indispensable in communications devices because it is the only substance that can withstand electromagnetic pulses that would otherwise zap all military equipment. Suppose also that there is a limited supply of Bellsium. High demand and low supply would make Bellsium an attractive target for theft. To ensure an adequate Bellsium supply for the military, Congress may want to let federal law enforcement investigate and prosecute cases of its theft. However, this bill cannot accomplish that goal.

Consider the bill’s text. It does not simply forbid theft of Bellsium that has traveled in interstate commerce. That would address the problem in a straightforward manner. But this bill doesn’t do that.

Instead, it uses overbroad terms to outlaw conduct. It would forbid theft of a long list of “specified metal[s],” which includes any metal that has a public utility logo or comes from such critical infrastructures as a “street sign,” a “grave marker or cemetery urn,” or “a container used to transport or store beer with a capacity of 7.75 gallons or more.” (Who knew that the nectar of the gods was critical to national security?)

But there is more. The government must prove that a theft “harms” the nation’s “critical infrastructure,” which is defined as “systems and assets” that are “so vital to the United States” that their incapacity “would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.”

Those requirements raise endless questions: How much theft is necessary for “a debilitating impact”? The first theft wouldn’t be sufficient, particularly if the amount was small, but the 1,000th theft might be. When does the tipping point occur? Does it change each year?

Also, how would the government prove the necessary “impact” on security; national, economic, or otherwise?

An affidavit? Nope—the Sixth Amendment Confrontation Clause forbids trial by affidavit.

An expert opinion? Whose? Do we want the Secretary of Homeland Security to have to testify? Do we want to have a battle of experts on the issue or leave the issue to the jury? We don’t ask juries to gauge the effect of a theft on the nation. We ask them only if one has occurred. There is no reason to change that approach now.

This is particularly true when there is a perfectly reasonable alternative. The Department of Homeland Security has a National Infrastructure Protection Plan that provides for a collaborative effort between federal agencies and state and local law enforcement to protect the nation’s critical infrastructures. This allows federal, state, and local governments to investigate these thefts jointly.

The government needs to use the resources it already has. That approach might address the problem. This bill won’t.

Bills such as the Metal Theft Prevention Act make it appear as though Congress is accomplishing something substantive even though it really isn’t. This just adds to the maze of criminal laws. Even if the federal government has a particular interest in the theft of metal that is necessary for communications, this bill would only create more problems than it would solve.