Unlawful Possession of a Skimmer Device

Skimmer devices are becoming an increasingly common tool used by criminals to steal personal and financial information from unsuspecting victims. But what exactly are skimmer devices, and what does the law say about possessing them? This article provides an in-depth look at the crime of unlawful possession of a skimmer device.

What is a Skimmer Device?

A skimmer device is a small electronic device that is designed to secretly steal data from credit cards, debit cards, and other cards that contain personal identification information. Skimmers work by reading and storing the data contained in the magnetic stripe on the back of the card as the card is swiped through the skimmer.

Skimmers are often designed to be small and discreet so they can be secretly installed in locations where people frequently use their cards. Common places for skimmers include[1]:

• Gas station pumps
• ATMs
• Retail checkout counters
• Restaurants

The skimmer device is installed over the real card reader, so when a person swipes their card, the skimmer captures all the data but the real reader still works so the transaction goes through as normal. This allows the criminal to steal the card information without the victim realizing it[2].

The data collected by the skimmer – including the card number, expiration date, and security code – can then be used by criminals to make fraudulent purchases online or to create cloned counterfeit cards. Skimmers allow criminals to steal huge amounts of personal and financial data with little effort[3].

Laws Against Possession of Skimmers

Given the rise in credit card fraud enabled by skimmer devices, many states have passed laws specifically prohibiting the possession of skimmers. In New York State, there are two laws that make it a crime to unlawfully possess a skimmer device:

• Unlawful Possession of a Skimmer Device in the Second Degree – This is a Class A misdemeanor under Penal Law 190.85
• Unlawful Possession of a Skimmer Device in the First Degree – This is a Class E felony under Penal Law 190.86

Unlawful Possession of a Skimmer Device in the Second Degree

Under Penal Law 190.85, a person is guilty of unlawful possession of a skimmer device in the second degree when[4]:

• They possess a skimmer device
• They intend for the skimmer device to be used to commit identity theft or unlawful possession of personal identification information

This is a Class A misdemeanor punishable by up to 1 year in jail.

Some key things to note:

• The crime focuses on possession of a skimmer device, not actual use. Just having a skimmer in your possession is enough.
• There must be intent to use the skimmer for identity theft or stealing personal information – simply possessing it randomly is not enough.
• “Skimmer device” covers any device designed or adapted to steal data from cards. The technical details of the skimmer don’t matter.

Defenses to Skimmer Possession Charges

Some potential defenses if you are charged with unlawful possession of a skimmer device include:

• No knowledge – Argue you had no knowledge the skimmer device was present. Perhaps it was left in your car or planted on you by someone else. [6]
• No intent – Argue you had no intent to actually use the device for identity theft or stealing personal information. For example, you found the device and were simply curious about how it worked. [6]
• Misidentification – Challenge whether the device in question actually meets the definition of a “skimmer device” under the statute.
• Unlawful search – If the skimmer was found during a search by police, challenge whether they had lawful grounds to conduct the search. Evidence from an unlawful search may be suppressed.