Lawyer Monthly - June 2022

evade detection from a bank flagging a purchase as fraudulent. In east Texas between 2017 and 2020, so many card skimming cases were being prosecuted we were having to ask the courts to change venue because everyone had knowledge of, had been victimised by or had a friend or relative that was a victim to card skimming. It would be near impossible to have a fair or impartial jury in a rural county victimised by card skimmers. We are supposed to be tried by a jury of our peers, but who decides who are peers when an accused card skimmer drives in to a rural town from 400 miles away and that town and community has recently been ravaged by previous card skimmers? The problem then becomes seeking justice while balancing the due process rights and constitutional protections of an accused individual. How far can readily available cybersecurity solutions be relied upon to defend public systems against cyberattacks? In an effort to combat this growing problem, lawmakers and district attorneys from all around the state convened in Austin and our 87th Texas Legislature passed House Bill 2106, thereby creating what is now known as the Financial Crimes Intelligence Center in Smith County, Texas. Known as the FCIC, it was created to coordinate with multiple levels of law enforcement to share resources and information on card skimmers throughout the state and elsewhere. The centre created a place where law enforcement throughout Texas could be trained to investigate and prosecute card skimming. Through the creation and assistance of the FCIC, smaller counties once at a disadvantage can now share in state-wide resources for enforcing and prosecuting card skimming. State-wide law enforcement agencies now receive annual training in investigating and prosecuting cyber and financial crimes, leaving them prepared in the event that card skimming occurs in their community. Do you foresee any major shifts in the landscape of cybercrime in the near future? What new threats are individuals and financial services likely to face? Since the founding of the FCIC, County District Attorneys’ Offices began aggressively prosecuting those caught committing the offence of card skimming. Gas station attendants became vigilant. If they suspected a pump had been tampered with, law enforcement would turn on their own Bluetooth devices and, if the device read and wanted to pair with another device, they knew the pump had been tampered with. Law enforcement would then stake out the pump because they knew someone was going to come back to connect to the device and download card reader data. Sure as day, they would come back and law enforcement was ready to make arrests. These crimes were then prosecuted under a state law known as “organised criminal activity”. This is the state version of what people commonly know as the federal RICO act. Under the Organised Criminal Activity Statute §71.02 Texas Penal Code, what would have been a lowlevel felony offence is enhanced to a first47 JUN 2022 | WWW.LAWYER-MONTHLY.COM EXPERT INSIGHT degree felony charge. Think murder, which is also a first-degree felony, and which carries a punishment of up to 99 years’ incarceration. With the prosecution of these card skimmers, the district attorney’s office was asking juries to return verdicts of 99 years. Many times, the juries did so. This created a large deterrence within the community and sent a clear message: If you card-skim in our county, you will be prosecuted and a jury of your peers is not afraid to assess a punishment of 99 years. What can citizens do to prevent themselves from becoming victims of credit card skimmers? Stay vigilant. Try to use the gas pump nearest to the gas station attendant. Almost all gas stations now place a plastic seal or sticker on the base box of the pump. If that seal has been broken, that is a strong indicator that the pump has been altered. Another method to assist in detection of a card skimming device at the pump is to turn your phone’s Bluetooth device on before you pump. If your phone is detecting and trying to connect to an unknown Bluetooth device in the area, that is a sign that a card skimming device may be in range.

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