False Names and Identity Theft

[Editor’s note: Regular readers will notice two changes to the blog today. One, for the first time, my posts have a byline. Two, a photograph of the author now appears next to each post. Both changes are intended to make it more obvious who wrote what, so that questions and comments can be accurately directed, and blame and credit can be appropriately attributed.]

Under G.S. 14-113.20, our identity theft statute, it is a felony to use “identifying information of another person” in order to make fraudulent financial transactions or to “avoid[] legal consequences.” So, for example, it would be illegal for you to use my credit card number to order some new shoes from Zappos, because credit card numbers are “identifying information.” G.S. 14-113.20(b)(5).

A question that I’ve had several times is whether a person’s name is “identifying information.” The issue seems to arise most often when a person is stopped by police, is asked to identify himself, and gives another person’s name, perhaps because giving his real name would allow the police to discover that the person is the subject of an outstanding arrest warrant. It certainly seems that the person is attempting to avoid legal consequences, but is he using “identifying information of another person” in order to do so? In other words, may he properly be charged with identity theft?

I tend to think so, although the answer isn’t completely clear. To some, it may seem obvious that a person’s name is quintessential “identifying information.” After all what is more often used to identify a person than his or her name? But “identifying information” is a statutorily defined term, so the proper analysis starts not with common usage but with the definition of “identifying information” in G.S. 14-113.20(b). The term is defined as including a list of fourteen items, including things like social security numbers, bank account numbers, and passwords. The list specifically includes “electronic mail names,” “digital signatures,” and “[p]arent’s legal surname prior to marriage,” but it doesn’t include “names” generally, and none of the enumerated items fit the false name scenario above.

However, the statute also contains G.S. 14-113.20(b)(10), a catchall provision that includes “[a]ny other numbers or information that can be used to access a person’s financial resources.” A person’s name can be used to access their financial resources, so it seems to fit within the catchall. The counter-argument is that when the General Assembly chose to include “electronic mail names,” “digital signatures,” and “[p]arent’s legal surname prior to marriage” within the definition of “identifying information,” it implicitly chose not to include names more generally, so the catchall should not be interpreted in a way that is inconsistent with that choice.

I tend to think that a person’s name is “identifying information” because it falls within the catchall, based mainly on the plain language of the statute and slightly, by analogy, on the federal identity theft statute, 18 U.S.C. § 1028, which defines “means of identification” to include a person’s name. I think that the argument about the General Assembly’s implicit exclusion of names generally is too speculative. But I’m sure that others view the issue differently, perhaps including some of my colleagues. The court of appeals expressly declined to decide the issue in State v. Barron, __ N.C. App. __, 690 S.E.2d 22 (2010).

Finally, I should note that the conduct in the example clearly constitutes resisting, delaying, or obstructing an officer, so it is certainly criminal, whether or not it amounts to identity theft.