Possession of Identity Theft Tools

Colorado has an unusual statute that makes it a crime to possess identity theft tools. I can’t find a statute like it in any other state.

This is what the statute says:

A person commits possession of identity theft tools if he or she possesses any tools, equipment, computer, computer network, scanner, printer, or other article adapted, designed, or commonly used for committing or facilitating the commission of the offense of identity theft . . . and intends to use the thing possessed, or knows that a person intends to use the thing possessed, in the
commission of the offense of identity theft.

Colorado Revised Statutes § 18-5-905(1).

Possession of identity theft tools is a felony. Colorado Revised Statutes § 18-5-905(2).

Why did Colorado adopt this provision in 2006? I can see the rationale for doing so, I think, but I also doubt the statute is constitutional.

Let’s start with why they adopted it. As I’ve noted before, every state makes it a crime to possess burglar’s tools, i.e., tools that are specially adapted for or commonly used to commit burglary. As I explained in an earlier post, the purpose of this crime is to let law enforcement officers step in and arrest someone they suspect of getting ready to commit burglary before they can actually break into a house or a building.

As I noted in that post, possession of burglar’s tools statutes define an attempt crime. If a police officer on patrol sees someone standing outside a jewelry store equipped with tools that could be used to break into the store, the officer can stop and check things out. If the evidence indicates that yes, the person was getting ready to break into the store then the officer can arrest him for attempted burglary.

The same premise applies if an officer finds someone getting ready to kill someone or kidnap someone or set a building on fire. As long as the evidence and the legitimate inferences from the evidence prove beyond a reasonable doubt that the person had embarked on a course of conduct that was intended to culminate in the commission of a crime (burglary, murder, etc.), they can be charged with and convicted of attempting to commit that crime.

The policy justification for criminalizing attempts is that it lets officers intervene to stop crimes, instead of having to wait until the person breaks into the store or commit murder. Criminalizing attempts – which are by definition incomplete crimes – is also justified on the grounds that the person’s conduct shows they are dangerous, i.e., are willing and eager to commit a crime.

So where does that leave us with the Colorado statue? As I said, I think it’s a specialized burglar’s tools statute. As such, it’s presumably based on the premise I noted above: By making the possession of identity theft tools a crime, this statute would let law enforcement officers arrest someone who has such tools and thereby stop them before they actually commit identity theft.
That seems reasonable, and I don’t have any problem with the rationale of the statute. The problem I have with it goes, as I noted earlier, to its constitutionality.

The U.S. Supreme Court has held that statutes are void for vagueness and therefore unconstitutional when the language of the statute is so unclear that people “of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.” Connally v. General Construction Co., 269 U.S. 385 (1926). Vagueness is particularly objectionable when it comes to criminal statutes, for several reasons.

One reason why vagueness in criminal statues is particularly objectionable is that if you are convicted of violating a criminal statute, you’ll probably be punished with some very severe sanctions (fine, imprisonment, damage to reputation). It’s not fair to impose harsh sanctions on people if they couldn’t understand that something was prohibited.

Another, related reason derives from a basic principle of criminal law: ignorance of the law is no excuse. If I’m prosecuted for murder or theft, I can’t defend myself by saying “I didn’t know it was a crime to (kill people/steal stuff).” The principle that ignorance of the law is no excuse implicitly assumes that (i) the law exists and (ii) is knowable. In other words, it’s not enough just to adopt a statute that makes something a crime; the statute has to make it clear what is, and is not, being criminalized. It’s not fair to hold me liable for violating a statute that was so ambiguous or confusing that I couldn’t figure out what was being criminalized.

The third reason why vagueness is especially problematic when it comes to criminal statutes is that a vague criminal law can give rise to arbitrary and discriminatory enforcement. That is, such a law gives the people who are responsible for enforcing criminal law a lot of latitude to decide who they want to go after and who they don't. So unprincipled law enforcement officers and prosecutors can use such a statute against people they don't like or want to harass, and let everyone else go.

It looks to me like the Colorado possession of identity theft tools may well be void for vagueness. Vagueness is an issue that has been raised with regard to burglar’s tools, but possession of burglar’s tools statutes have been around long enough – and the kind of tools those statutes address are unambiguous enough – that vagueness really isn’t a viable argument in this context.

I don’t think that’s true here. I think the statute’s making it a crime to possess “any . . . computer, computer network, scanner, printer, or other article adapted . . . or commonly used for committing or facilitating the commission” of identity theft is unconstitutionally vague. How am I supposed to know whether the computer, scanner and printer I use are “commonly used for committing or facilitating” identity theft? What, in other words, makes my possession of these items a crime? How can I tell when my possession of a computer, scanner and printer is legal and when it’s a crime under the Colorado statute?

Maybe I’m missing something. Maybe there’s a class of computers, scanners and printers that are specifically adapted for identity theft and essentially have no other use. If that’s true, then maybe this statute is not unconstitutionally vague. I doubt it, though.