False Names and Identity Theft

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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.

6 thoughts on “False Names and Identity Theft”

  1. Names should be included in the definition. Just think about a person that is pulled/arrested and gives a false name. If “Bob” is arrested and made to appear in court to answer for his crime, but he gives the name “Joe” instead some serious consequences can arise for the real Joe.

    If the presiding judge, clerk of court, and DA do not recognize Bob as Bob then the offense will go onto Joe’s criminal record not Bob’s. Does anyone else see this as a problem? And don’t tell me it doesn’t happen, in fact it happens all the time, the only fail safe is the fact that the judge, clerk, or DA knows that Bob is Bob and not Joe, therefore the issue corrects itself. But when this happens w/o the court’s knowledge of the true offender the clerk will not take the time to make sure that the person is who they say they are, the charge stands and goes against the false name, not the person’s real name.

    I do know that many clerks include aka’s in their system but this isn’t a guarantee either. Criminal records can determine the rest of a person’s life, so a person’s name should be at the top of the list, not as a gray area in the definition.

  2. Jeff, it has always been my understanding that a person using a name alone under this law would not be committing an identity theft. The way the law is worded it seems that numbers would have to be involved in someway with the theft. I have always gone with the idea that if they were to use a false name and date of birth or social security number that looks like it would fall with in the law. The other question I have seen raised is what if the name that they used was in fact a completely false name making the argument that they did not actually take anyone’s identity, no victim no crime type of argument. I think that main issues it boils down to is do you work in a district that can argue the case and win.

  3. The statute is ambiguous and the legislative intent is unclear. Thus, the rule of lenity should apply in favor of the defendant.

  4. I just had this happen to me the other day. Bad guy gives a real name and date of birth that belonged to someone else…who happened to be serving 15 years in prison for murder…he even told me he had been in prison for a while on a violent crime…later when I figured it out I found that he had 2 warrants.

    Name only I don’t see the charge working…but name and DOB for a real person-I think it should. We get bad names all the time but someone using a real name and DOB as their own is pretty uncommon. And I think the difficulties that it could cost the real person fall under the legislative intent, and avoiding the arrest he would have had clearly is avoiding a legal consequence.

    I’ll be trying to take out a warrant on him on Wed. I’ll let you know how it works out.

  5. The question is why are all people not treated equally? When an American gets caught using a fake name, SS number, or making a false statement to the police, or government official they get arrested. But when a illegal hispanic does it he’s provided with a I’m sorry you didn’t know better or the I-10 tax return to file their fraudulent tax returns…


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