Identity Theft, "Access Devices" and the Driver's License

After a jury convicted him of “two counts of second-degree theft for stealing two `access devices’” and the judge sentenced him to “3 years to serve on each count with the sentences of run concurrently”, Harold P. Kankanton appealed.  Kankanton v. State, 2015 WL 404219 (Court of Appeals of Alaska 2015).  More precisely, he appealed “only his second conviction (the conviction for theft of a driver's license), arguing that a driver's license does not qualify as an `access device’ under Alaska law.”  Kankanton v. State, supra. 

The Court of Appeals’ opinion does not explain how the charges arose, but Kankanton’s initial brief on appeal does:

Harold Kankanton was charged with two counts of burglary and three counts of theft arising out of the same incident. . . .The first two counts charged Kankanton with burglary at each of two houses. . . . The third count charged Kankanton with second-degree theft, of property valued at $500 or more. . . .

The fourth and fifth counts charged Kankanton with second-degree theft, of access devices, for taking a credit card and a driver's license. . . .

At Kankanton's jury trial, the state argued that, while intoxicated, Kankanton went into the unlocked entryways of two houses and left with several items, including a pair of snow pants, several winter jackets, a credit card belonging to Melissa Allsup, and a driver's license belonging to Hannah Allsup. . . . Kankanton argued that, at the time, he was too intoxicated to form the mental state required to commit any of the charged offenses and that the state had not proved its case beyond a reasonable doubt. . . .

Opening Brief of Appellant – Kankanton v. State, 2013 WL 8337791 (2013).

The brief goes on to explain that the jury

deadlocked as to both burglary charges, acquitted Kankanton of stealing property worth $500 or more, and convicted him of both charges of stealing access devices. . . . The state later dismissed the burglary charges. . . . Kankanton now appeals his conviction of the fifth count, for theft in the second degree for taking a driver'slicense. 

Opening Brief of Appellant – Kankanton v. State, supra.

The Court of Appeals began its analysis of the issue Kankanton raised on appeal by explaining that

[u]nder Alaska Statutes 11.46.130(a)(7), a person commits second-degree theft `if with the intent to deprive another of property, or to appropriate property of another to oneself or a third person, the person obtains the property of another’ and the property is `an access device.’ The term `access device’ is defined under Alaska Statutes 11.81.900(b)(1):

`access device’ means a card, credit card, plate, code, account number, algorithm, or identification number, including a social security number, electronic serial number, or password, that is capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services, or that can be used to initiate a transfer of property[.]

Kankanton v. State, supra. 

The court went on to note that

[u]nder the plain language of this statute, an item is an `access device’ if (1) it falls within the listed categories -- `a card, credit card, plate, code, account number, algorithm, or identification number, including [but not limited to] a social security number, electronic serial number, or password’ -- and (2) it is `capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services.’

The same legislation that enacted this definition of `access device’ separately defined `identification document’ as `a paper instrument, or other article used to establish the identity of a person,’ including `a social security card, driver's license, non-driver's identification, birth certificate, passport, employee identification, or hunting or fishing license.’

Kankanton v. State, supra (emphasis in the original).

The Court of Appeals then applied these principles to the facts in this case:

Thus, a driver's license is specifically included in the definition of an `identification document,’ but it is not specifically listed as an `access device.’ The question presented in this appeal is whether we should nevertheless construe the definition of `access device’ to encompass a driver's license because it is a type of `card’ or `identification number’ that could be `capable of being used, alone or in conjunction with another access device or identification document, to obtain property or services.’

The legislative history of the relevant statutes provides no guidance on this question. During committee discussion of the legislation, a representative of the Alaska Public Defender Agency expressed concern that the definition of `access device’ could potentially be construed to include a driver's license, but committee members did not respond to that concern or indicate whether or not they agreed with it.  Accordingly, we must discern the legislature's intent from the face of the relevant statutes and the surrounding discussion of its purpose.

Kankanton v. State, supra. 

The court then analyzed the extent to which the Alaska legislature’s intent in adopting the statutes could be inferred from the processes involved in their adoption:

The statutes defining `access device’ and `identification document’ were enacted in 2000 as part of a larger crime bill addressing the problem of identity theft.  At the time, the third-degree theft statute criminalized only `[theft] of a credit card.’ The 2000 legislature replaced the term `credit card’ with `access device’ to ensure that the theft of a person's credit card number -- or other number or code capable of being used to commit theft electronically -- was punishable to the same extent as the theft of a physical credit card.

As part of the same crime bill, the legislature amended other sections of the criminal code to bring it up-to-date with the more technologically sophisticated means through which people improperly access the finances and financial credit of others. The offense of `fraudulent use of a credit card’ thus became `fraudulent use of an access device,’ a class B felony when the offender obtains more than $25,000 in property or services.

In other sections of the code, the legislature opted to replace the term `credit card’ with `access device or identification document.’ Thus, the crime of `obtaining a credit card by fraudulent means’ became the crime of `obtaining an access device or identification document by fraudulent means.’

The legislature also created the new crime of first-degree criminal impersonation, which makes it a felony to recklessly damage the financial reputation of a person by using the person's access device or identification document without authorization `to obtain a false identification document, open an account at a financial institution, obtain an access device, or obtain property or services.’

Kankanton v. State, supra (emphasis in the original).

It went on to explain that

[a]s this discussion makes clear, in the 2000 identity theft bill, the legislature assigned distinct meanings to the terms `access device’ and `identification document’ -- enacting separate definitions in Alaska Statutes 11.81.900 and creating some criminal offenses that penalize conduct involving access devices and other criminal offenses that penalize conduct involving both access devices and identification documents.

The State argues that these terms are not mutually exclusive. In its view, a driver's license, like a social security card, can function as an identification document and as an access device, because it is potentially `capable of being used, alone or in conjunction with another access device or identification document to obtain property or services.’

Kankanton v. State, supra (emphasis in the original).

The court then

agree[d] that a driver's license, like an access device, might be used `to obtain property or services’ -- for instance, to open a bank account or to obtain credit. But this is potentially true of all the items listed in the definition of `identification document,’ including a birth certificate, passport -- even a hunting license.

We think if the legislature had intended `theft of an access device’ to mean `theft of an access device or an identification document,’ it would have said so, as it did in other sections of the criminal code.

The State also cites to several federal cases that have treated a driver's license as an `access device’ under federal law. But the federal definition of `access device’ that these cases discuss does not differentiate between `access device’ and `identification document’ in the same way that the Alaska definition does.  In addition, the federal definition to which the State analogizes Alaska's definition applies to the fraudulent use of access devices, not to simple theft.

Kankanton v. State, supra (emphasis added).

The Court of Appeals therefore found that

[h]aving reviewed the legislative history of Alaska Statutes 11.81.900(b)(1) and the larger statutory scheme that was enacted at the same time, we conclude that the legislative intent with regard to whether a driver's license is an `access device’ for purposes of the second-degree theft statute is, at best, ambiguous.

We are therefore required by the rule of lenity to construe the definition of this statutory term against the imposition of criminal liability. Accordingly, we vacate Kankanton's conviction for second-degree theft of the driver's license and remand this case to the superior court for further proceedings, including to determine whether entry of judgment against Kankanton for fourth-degree theft is appropriate.

Kankanton v. State, supra.