The legal community is getting geared up for what might be the first trial involving criminal activity in space as a decorated Army officer and astronaut faces accusations of identity theft after she accessed a bank account belonging to her former spouse while on the International Space Station. If formal charges are filed, it would be the first prosecution of a space crime.
(Yeah, we were hoping that the first space crime would include theft of a rocket or mounting a laser on the Moon, too. But this is the world we live in.)
First, a quick rundown of the facts: Lt. Col. Anne McClain acknowledges that she used the login credentials of her former spouse, fellow Army veteran Summer Worden, to access their shared finances from the ISS. Technically, that act could constitute identity theft, but McClain says her actions were a continuation of how the couple managed finances while married.
The two women are going through a divorce that also includes a contentious custody dispute.
You may know McClain's name from the planned all-female spacewalk in March 2019 that was canceled because there was only one spacesuit that would fit the two women scheduled for the spacewalk. Fellow astronaut Nick Hague took McClain's place on the spacewalk, and Saturday Night Live did a fake interview with McClain the same week.
When it comes to the law that pertains to McClain in space, it does get a little murky. According to attorney Devin Stone, a practicing lawyer who runs the YouTube channel LegalEagle took a look at what laws could be brought to bear on McClain if it's deemed that she committed a crime.
Well, for that, Stone points to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967. (It's more commonly known as the Outer Space Treaty of 1967.)
Article VI of that treaty says that governments are responsible for ensuring that all activities undertaken by their representatives or nationals conform to the rules of the treaty. The treaty also charges national bodies with creating the laws necessary for controlling their nationals' conduct in space.
And Article VIII of the same treaty says that each state that is a party to the treaty will retain jurisdiction and control of any object that state launches into space as well as any personnel it sends into space.
And, as Stone points out in the video above, the ISS is controlled by another agreement signed in 1998 that further defines criminal jurisdiction aboard the ISS. Basically, Article 22 of that agreement states that any governments that are part of the ISS program retain criminal jurisdiction of their nationals while that national is aboard the ISS.
So, those articles together mean that McClain was subject to all applicable U.S. laws while in orbit. And presenting the digital credentials of another person in order to gain access to their financial information is identity theft.
If a U.S. attorney brings charges against McClain, it would be under Title 18 U.S. Code § 1028 Fraud and related activity in connection with identification documents, authentication features, and information. The maximum punishment for a single offense under that law is 30 years, but McClain's actions, as reported in the press, would constitute a relatively minor offense under the code.
If McClain did not remove any money and only presented one set of false identifying documents—if she just logged in with Worden's username and password, but didn't create a false signature or present other false credentials—then the maximum punishment for each false login would be five years imprisonment.
And even then, the law allows for judges to assign a lower sentence, especially if there are mitigating factors or if the defendant has no prior criminal history.
But there are still some potential hiccups in a potential prosecution of McClain. As Stone discusses in his video, a murder investigation in Antartica was derailed after competing investigations and jurisdictional claims prevented a proper inquiry into the crime. The rules governing space jurisdiction has a strong parallel in the treaties and laws governing conduct in Antartic research stations.
Hopefully, for McClain and the Army's reputation, no charges are filed. But if charges are filed, someone gets to become the first space lawyer to argue a space crime in space court. (Okay, it would just be normal federal court, but still.)