Is identity theft really theft?

Abstract

This article continues the examination of the emergent legal concept of identity now clearly evident in the UK as a result of the Identity Cards Act 2006 (UK) and its consequences. In ‘Conceptualising Identity’ (International Review of Law, Computers and Technology 2, no. 3 (2007): 237), the author asserted that identity is emerging as a distinct, new legal concept and considered the composition and legal function of the new concept. This article builds on that study and uses the emergent concept of identity, particularly token identity, to analyse the nature and consequences of identity theft. Identity theft is defined using the concept of identity now evident in the UK and the article examines misuse by a person of another individual's registered token identity for a transaction. The article considers whether an individual's identity is property that is capable of being the subject of theft, having regard to the nature and function of the emergent concept of identity.

Keywords:

• identity
• property
• theft

Notes

Clare Sullivan, ‘Conceptualising Identity’, International Review of Law, Computers and Technology 21, no. 3 (2007): 237.

In this paper ‘information’ includes ‘data’, unless otherwise indicated.

Schedule 1, Identity Cards Act.

‘Transaction’ is used to describe any dealing, whether in person (i.e. face to face) or using remote communication (such as a telephone, the internet or a computer network), for which an individual is required to identify himself/herself. A transaction or dealing may be between an individual and a government department or agency or with a private sector entity, and can range from an enquiry to a contract. ‘Transaction’ does not include transactions and dealings of a non-business nature such as domestic and social interaction.

Biometrics will be required for relatively large financial transactions.

Questions can include address and mother's maiden name, for example.

Alex Steel, ‘Intangible Property as Theft’, Sydney Law Review; 30 (2008): 575.

The law in some European jurisdictions provides similar protection to persons who do not have a public profile but as a personal, not a proprietary right.

Tony Honoré, ‘Ownership’, in Oxford Essays in Jurisprudence, ed. A.G. Guest (Oxford, Oxford University Press, 1967), 113.<edn/publ 1960>

In examining the concept of ownership evident in most legal systems, Honoré found 11 elements consisting of nine rights, one duty and one liability, which are necessary for ownership of property. The duty is the duty to prevent harm. The liability is the liability to execution (see Honoré, Ownership).

Oxford v. Moss, 68 Criminal Appeal Reports 183. In this case a student dishonestly obtained the proof of an examination paper, read it and then returned it.

Although that decision was stated by the Court to turn on the question of whether information is property, rather than determining that question, the reasoning concentrates on whether information can be stolen. Oxford v. Moss (note 11 above) was really decided on the basis that the unauthorised reading of the proof of an exam paper by a student was not an appropriation of intangible property with intent to permanently deprive. In reading the proof, the student did not remove or change the information it contained (but arguably it did lessen its value as an assessment tool), so the defendant was not guilty of theft. Although not articulated by the Court, there is also a question a criminal conviction for theft was justified in these circumstances.

Oxford v. Moss, see note 11.

National Provincial Bank v. Ainsworth (1965) AC 1175.

National Trustees Executors & Agency Co of Australasia Ltd v. FCT (1954) 91CLR 540, 583.

Mabo No. 2 (1992)175 CLR 1.

Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1970), 131.

Ibid.; Charles Reich, ‘The Individual Sector’, Yale Law Journal 100, no. 128 (1991): 1409.

Kelsen, see note 17; Morris Cohen, ‘Property and Sovereignty’, Cornell Law Quarterly 13 (1927): 12.

Yanner v. Eaton (1999) 201 CLR 351, para 17–20.

R v. Morris (1984) AC 320. This interpretation has been criticised, particularly by A.T.H. Smith, as being an incorrect reading of Section 3(1). In Smith's view the right referred to in that section is ‘a right “to it” i.e. the thing being stolen, which in context means the whole thing and all the rights in it’. Smith maintains that Section 3(1) and (2), which were relied upon by the Court in Morris, only show that ‘the violation of a single right … might be sufficient to constitute an appropriation if it is accompanied by (as) an assumption of all the rights’(sic). See A.T.H. Smith, Property Offences (London: Sweet and Maxwell, 1994), 148, 149.

R v. Gomez (1993) AC 442; R v. Hinks (2001) AC 241

Steel, ‘Intangible Property as Theft’.

Honoré, ‘Ownership’.

R v. Lloyd (1985) QB 829; R v. Warner (1970) 55 Cr App R 93.

J.C. Smith, The Law of Theft, 8th ed. (London: Butterworths, 1997). 77, 80; R v. Hall (1849) 1 Den 381.

Smith, The Law of Theft.

R v. Lavender (1994) Crim LR 297; Chan Man-sin v. Regina (1998) 1 WLR 196.

R v. Lavender, see note 28.

R v. Hall, see note 26.

Edward Griew, The Theft Acts, 7th ed. (London: Sweet and Maxwell, 1995), 70.

Steele, ‘Intangible Property as Theft’.

R v. Feely (1973) 1 QB 530, 538.

R v. Ghosh (1982) QB 1053, 1064.

Ibid.

Jeremy Horder, ‘Re-thinking Non Fatal Offences Against the Person’, Oxford Journal of Legal Studies 14, no. 3 (1994): 335, citing J.C. Smith and Brian Hogan, Criminal Law, 7th ed. (London: Butterworths, 1992), 350.