--- begin forwarded text Date: Sat, 13 Oct 2007 23:11:39 -0400 To: Philodox Clips List <clips@philodox.com> From: "R.A. Hettinga" <rah@shipwright.com> Subject: [Clips] Is it legal to use an alias anymore? Reply-To: clips-chat@philodox.com Sender: clips-bounces@philodox.com <http://earthlink.com.com/2102-7348_3-6213284.html?tag=st.util.print> http://www.news.com/ | CNET News.com Police Blotter: Is it legal to use an alias anymore? By Declan McCullagh Story last modified Fri Oct 12 11:55:35 PDT 2007 Police Blotter is a weekly News.com report on the intersection of technology and the law. What: Arizona man who invented the name "Peter Reynolds" and used it as an alias appeals his conviction of 10-year prison sentence. When: Arizona Supreme Court rules on August 30. Outcome: One of three charges resulting in conviction reversed; his convictions on the other two counts remain intact. What happened, according to court documents and other sources: Aliases, pseudonyms and pen names have been commonplace over the years. Take Judy Garland (Frances Gumm), Clive Hamilton (C.S. Lewis), Mark Twain (Samuel Clemens), Lewis Carroll (Charles Dodgson), George Eliot (Mary Ann Evans), and David Copperfield (David Seth Kotkin). The Federalist Papers urging the ratification of the U.S. Constitution were written by "Publius." The problem is what happens when someone using a pseudonym in real life runs into relatively new laws intended to protect against identity fraud. That leads us to the odd case of Peter Sharma, an Arizona senior citizen who was convicted in 1988 of creating false documents but never reported to prison as ordered. Instead, he went on the lam for the next seven years, living an apparently normal life as "Peter Reynolds" with a good credit history. He eventually was tracked down and served a prison term from May 1996 until December 2000. Then he was released on probation for five years. Sharma said that upon his release, though, he had problems doing things like renting an apartment and opening bank accounts. So he reverted back to his Peter Reynolds identity--not in any effort to harm someone, he says, but just to be able to be part of an electronic society where identity has become closely linked to information in government and corporate databases. And thanks to "Peter Reynolds" paying his bills so diligently, that identity had solid credit. Except for the fact that Sharma wasn't using his legal name and Social Security number, he seemed to be an upstanding citizen. His bills were paid on time. The Social Security number he invented had the same digits as his own but in a different order; he eventually obtained a Florida driver's license, credit and debit cards, checks and a counterfeit Social Security card, all bearing the name Peter Reynolds. Sharma used them to open bank accounts with Bank of America and Chase Manhattan Bank, obtain credit cards, and obtain utilities--including with Cox Communications--for his apartment. He even began the process of buying a house from Pulte Homes for $242,000. But eventually, police in Maricopa County, Ariz., found out about his use of the name Peter Reynolds and charged him with three felonies: theft by material representation, unlawful possession of an access device, and taking the identity of another. He was sentenced to concurrent mandatory prison sentences that would lock him up for another 10 years. At the time of his conviction in November 2005 (PDF), he was 70 years old. After the police began investigating him, the banks froze his account. As a result, Cox Communications was not promptly paid $250 in cumulative monthly fees (details are unclear, but his cable bill may have been taken out of his bank account automatically). Until then, his account with Cox had been paid on time. Sharma appealed. He claimed there was not enough evidence to convict him of theft and unlawful possession of an access device, and that his prior federal felony convictions were incorrectly used to enhance his sentence. He did not appeal his identity theft conviction. The Arizona Court of Appeals split the difference. It said that even though the $250 owed Cox was unpaid because the police froze his accounts, the company "suffered a financial loss when defendant ultimately was unable to pay for a portion of the service" and therefore the theft conviction was appropriate. But the court was more lenient when considering his conviction for unlawful possession of access devices. State law defines "access device" as cards or numbers or passwords that can be used to obtain anything of value. Unlawful possession is defined as possessing without the consent of the owner. The court said that no evidence showed Sharma possessed an access device without permission of the owner. Nor, the court said, did he obtain anything with them that he had not paid for himself, and reversed his conviction on that count. Excerpts from Arizona Appeals Court's opinion: Defendant was charged with knowingly possessing more than five but less than one hundred access devices in violation of A.R.S. Sec. 13-2316.01 (2001). He argues on appeal that the trial court misinterpreted Sec. 13-2316.01(A) and that the evidence does not support his conviction. One commits unlawful possession of access devices "by knowingly possessing, trafficking in, publishing or controlling an access device without the consent of the issuer, owner or authorized user and with the intent to use or distribute that access device." "Without the consent of the issuer, owner or authorized user" is not defined or explained. An "access device" is defined as: any card, token, code, account number, electronic serial number, mobile or personal identification number, password, encryption key, biometric identifier or other means of account access, including a cancelled or revoked access device, that can be used alone or in conjunction with another access device to obtain money, goods, services, computer or network access or any other thing of value or that can be used to initiate a transfer of anything of value... As enacted, however, Sec. 13-2316.01 does not state that it bars knowing possession of another person's access device but rather simply bans possession of an access device "without the consent of the issuer, owner or authorized user and with the intent to use or distribute (it)." Thus, the statute does not expressly say that it prohibits possession of access devices that belong to another person... The instant case does not fall within the typical situation in which a defendant possesses the access devices issued to or belonging to another individual without that person's consent but with intent to use them to cause a loss or harm. Rather, defendant possessed a driver's license, checks, and bank cards issued in the name of an alias, and the evidence showed that he had only used the checks and bank cards to access his own money in bank accounts he had opened using the alias. Although he may have obtained or opened the bank accounts by representing himself as Peter Reynolds, he had not stolen any of the cards or checks, and none of the cards or checks belonged to a separate person named Peter Reynolds. Thus, even though the name "Peter Sharma" did not appear on the devices, defendant was not in possession of devices belonging to another person with the intent to use the devices to access accounts belonging to that other person and to cause any harm or loss. In this case, no evidence showed that defendant ever used the bank cards or checks in his possession to obtain property or services without paying for such property or services or to access accounts belonging to anyone but himself. Instead, the evidence showed that he intended to be bound for the goods and services he obtained and in fact in the past had used the devices to access his own accounts and to obtain goods and services for which he routinely paid. The State nevertheless argues that the issuers of the checks and bank cards would not have consented to providing these access devices to defendant if they had known he was Peter Sharma and thus he held them without the issuers' consent. But we are unpersuaded that the reference to "without consent" intended anything more than to prohibit one from possessing, with an intent to use them, stolen or forged bank cards, checks, or other access devices. Here, the issuers had voluntarily and through their routine business practices provided defendant with an appropriate device to gain access to his own account. Furthermore, defendant used the devices, as the issuers had intended, to access his own accounts. If we accept the State's argument, the issuers' mistaken belief about defendant's true identity transformed their voluntary and routine provision of the access devices either into involuntary provision of the devices or a revocation of their consent that he possess the devices. The State points to no statutory language, history or goal to support such a construction. An additional consideration persuades us that the legislature did not intend to outlaw possession of access devices unless the owner and the authorized user and the issuer all consented to such possession. For example, if a man allowed his cousin to use his credit card to purchase goods or services because of his cousin's youth or poor credit history, the cousin would knowingly possess the card with the owner's and authorized user's consent and with intent to use the card, but he also would be in possession of the card without the issuer's explicit consent. We do not think the legislature intended to sweep within the reach of Sec. 13-2316.01 the cousin's authorized possession and intent to use the card. The State's interpretation would cut an unnecessarily wide swath and criminalize perfectly innocent or legitimate possession of access devices without achieving any law enforcement purpose. The banks that issued the access devices to defendant did so in order for him to use the devices and to gain access to the very accounts he had opened or owned. Because the evidence does not support a finding that defendant possessed the access devices "without the consent of the issuer, owner, or authorized user," we reverse the conviction for unlawful possession of access devices. -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips@philodox.com http://www.philodox.com/mailman/listinfo/clips --- end forwarded text -- ----------------- R. A. Hettinga <mailto: rah@ibuc.com> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'