[Clips] Is it legal to use an alias anymore?

R.A. Hettinga rah at shipwright.com
Sat Oct 13 20:13:08 PDT 2007


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 Date: Sat, 13 Oct 2007 23:11:39 -0400
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 From: "R.A. Hettinga" <rah at shipwright.com>
 Subject: [Clips] Is it legal to use an alias anymore?
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 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 at 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'
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-- 
-----------------
R. A. Hettinga <mailto: rah at 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'





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