As the levels of digitalization of the world continue to soar, the number of individuals that use personal information belonging to others to engage in criminal activities is on the rise. Identity theft relates to crimes that happen when an individual uses the personal information of a victim to pose as victim so that they can get services and goods, or for other valuable gains. The FTC (Federal Trade Commission) estimated that close to 13.9 million of the American populace lost their identities in 2009 (Theoharis, 2017). Loses, in monetary terms that occurred through the identity theft crimes measure in billions annually. In addition, it is approximated that about one for each twenty consumers will be victims of identity theft this year alone (Theoharis, 2017). It should be understood that some of the identity thieves steal personal information of deceased persons.
Identity theft is quite a new form of crime even while it is a new form of criminal offense. States previously categorized identity theft as theft by deception, forgery, and false impersonation among other forms of crime. Some of the states continue to utilize such laws in punishing crimes of identity theft presently, while others have instituted specific laws dealing with identity theft, and targeting this behavior. Therefore, it implies that challenges could be existing within the legal system of some states concerning when identity theft really occurs. The purpose of this paper is to elaborate on this issue through analyzing federal criminal law. The paper determines if a person still commits an identity theft crime when they obtain personal information from others but do not cause any financial damage to the victims. In addition, it reports the changes in the identity theft laws in the country and the circumstances that have led to the changes.
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Q1. If a person steals another person's identity but does not cause any monetary damage, has a crime been committed? Why or why not?
A person commits an offense of identity theft when they obtain the personal identification information of and uses it in a way which entails deception or fraud, typically for economic gain (Theoharis, 2017). Criminals, upon the obtainment of enough personal information of victims, could take over the identity of that victim and engage in different types of crimes such as the false applications of credit cards and loans (Theoharis, 2017). The criminals could also engage in fraudulent withdrawals of the victims’ money from their bank accounts, use of telephone cards and online accounts. The criminals could still use the stolen personal identification information to obtain privileges or products that they could have otherwise been denied if they had used their real identifications.
Federal identity theft laws are an establishment of offense section 1028(a) of title 18, United States Code, which is amended in paragraphs 5 and 6 (Federal Trade Commission, 2017). An individual commits an identity theft crime if they knowingly transfer or use, in the absence of lawful authority, an identification means of another individual with the intention of committing, or to assist or abet, any unlawful activity. The activity could be one, which culminates in the violation of federal law, or which culminates in a felony under the laws of any state or local government (Federal Trade Commission, 2017). From this illustration of the legal directives of the federal law, it is possible to understand that an identity theft criminal could be found guilty of their offense when they use the stolen personal identification data to cause economic loses or not. The first situation, the economic losses to the victim, is exceptional. However, the second case, where there are no financial losses incurred, is provided for by the federal law in paragraph (5) that they shall be charged with the crime if they intend to use the stolen information to commit an offense (). Therefore, the answer to the question is yes! A person could be charged with identity theft even if their actions do not cause financial losses to the victim.
A perfect example of the Flores-Figueroa v. United States case in which the Supreme Court ruled that the accused person was not guilty of identity theft crime after he had used fake personal identification data to acquire a job (The Supreme Court of the United States, 2008). As much as the case was ruled in favor of the accused, there are two issues to be noted from the case. The first one is that identity theft crimes are likely to be imposed on people who use or transfer fake documentations even when they do not cause damage to their legal owners. Second, the basis on which the attorney in the case ruled in favor of the accused was the interpretation of federal law, which states that people commit identity theft crimes when they intentionally use the data to commit crime. It is agreeable that securing a job using fake documentation is a crime under the federal law (Federal Trade Commission, 2017). It is also agreeable that possessing stolen personal identity data with the intention of committing a crime such as acquiring a job is an offense. The willful acquisition of identity information belonging to others is what was the bone of contention in the case since the accused argued that they had not obtained the falsified personal identity information intentionally since there was no evidence to prove so. It means therefore, that if the court would have been able to establish that the accused had acquire the information intentionally, the ruling would have been against him since, as proved, it would have been a criminal offense but not resulting in economic losses to the victim.
Q2: How have these laws changed over the recent years?
The current Identity Theft and Assumption Deterrence Act was established in 1998 (Office for Victims of Crime, 2017). However, prior to that all the crimes that would be termed identity theft in the modern age were charged the statutes of false personation, which had its origin in the 19 th century (Office for Victims of Crime, 2017). In definitive terms, false personation relates to the criminal offense of assuming the identity of another individual falsely to gain a certain benefit to avoid the expenses associated with something (Office for Victims of Crime, 2017). However, in 1998, congress passed to law, the Identity Theft and Assumption Deterrence Act, which listed identity theft on the official list of federal crime (105 th Congress). It should be understood that this law cemented the criminal laws that related to identity theft. This Act realized four major accomplishments.
For example, the first accomplishment was that it identified identity theft as a separate crime against a person that had their identity stolen and their credit destroyed (Office for Victims of Crime, 2017). Previously, the people that suffered from identity loss had been classified so based on financial loss, and much emphasis was placed on financial institutions such as banks and others and not on the individuals (Office for Victims of Crime, 2017). The Act also established the FTC, which would then act as the central point of the federal government for reporting identity theft through the creation of the Identity Theft Data Clearinghouses. The third accomplishment of the Act was its contribution to the criminal penalties for fraud and identity theft. In specificity, the identity theft offense now has a substantial fines accompanying a maximum of 15 years imprisonment (105 th Congress, 1998). Lastly, the 1998 Act eliminated loopholes that had previously criminalized the production and possession of identity documents and not stealing the identity details of another person. Other laws have been enacted at the Federal level to deal with the growing complexities related to the issue of identity fraud and theft. For example, the Fair Debt Collection Practices Act, Identity Theft Penalty Enhancement Act, and the Identity Theft Enforcement and Restitution Act are among such laws.
The state legislative units also began passing laws over time, which enabled victims, and the laws they passed formed he foundation of national laws in the eventual process (Office for Victims of Crime, 2017). In the state of Nevada, for example, persons could be charged with the crime of identity theft if they possess and use the personal information of others for their own benefit. The law is also an evolution from the old impersonation crime. The legal framework of Nevada consider it a crime when an individual obtains personal identification information of others with the intent to pose as the victim and access additional information, transactions, communications and private records without the consent of the legal owner. In addition, the individuals could be charged with identity crime if they avoid or delay the process of prosecution for any form of crime, harm the victim, or commit any other crime such as obtaining credit, services, and goods using the stolen identity (Mince-Didier, 2017).
There exists a modification of the identity theft crimes of the State of Nevada from the federal laws. For example, Nevada imposes more severe punishment to criminals found guilty of stealing personal information for victims who are 60 years or older (Mince-Didier, 2017). In addition, more severe penalties are imposed on criminals if their victim is a vulnerable individual such as mentally, physically disabled, or incapacitated. Lastly, the punishment for the crime is more severe if it results in financial losses to the victim measured to be more than $30,000. The laws in Nevada are also severe on public employees who involve in the crime. Another improvement on the identity theft laws of Nevada is that it criminalizes the ownership and establishment of laboratories of financial forgery (Mince-Didier, 2017). Such laboratories, according to the law, include any devices, computer or systems established to gain personal identification information or produce forged identification documents or financial instruments. Additionally, it is a criminal offense to copy or read credit card data as well as other financial or personal data without the consent of the victim. For instance, an individual who has a software that manufactures licenses of drivers could be charged and convicted with the possession of a laboratory for financial forgery (Mince-Didier, 2017).
In conclusion, the federal and state laws in the US are consistent in criminalization of personal identity information theft. For instance, identity theft occurs when a person knowingly transfers or uses, in the absence of lawful authority, an identification means of another individual with the intention of committing, or to assist or abet, any unlawful activity. The activity could be one, which culminates in the violation of federal law, or which culminates in a felony under the laws of any state or local government. This law, however, was not in existence until 1998 when the Identity Theft and Assumption Deterrence Act was established. Before then, identity theft was referred to as false personation, which was quite controversial. Today, it is a criminal offense to steal personal identity data with the intent to commit crime even when such crime is not committed. States have been instrumental in shaping the national framework for the prosecution of cases involving identity theft through the creation of other laws related to it.
References
105 th Congress (1998). Public Law 105-318: 105 th Congress. Retrieved June 3, 2017 from https://www.gpo.gov/fdsys/pkg/PLAW-105publ318/pdf/PLAW-105publ318.pdf
Federal Trade Commission (FTC) (2017). Identity Theft and Assumption Deterrence Act . Retrieved 3 June 2017, from https://www.ftc.gov/node/119459
Mince-Didier, A. (2017). Nevada Identity Theft Laws | Criminal Law . CriminalDefenseLawyer.com . Retrieved 3 June 2017, from http://www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/penalties-in-nevada-for-an-identity-theft-convic
Office for Victims of Crime (2017). Expanding Services to Reach Victims of Identity Theft and Financial Fraud - Federal Identity Theft Laws . Retrieved 3 June 2017, from https://ojp.gov/ovc/pubs/ID_theft/idtheftlaws.html
The Supreme Court of the United States (2008). Flores-Figueroa v. United States. Retrieved June 3, 2017 from https://www.supremecourt.gov/opinions/08pdf/08-108.pdf
Theoharis, M. (2017). Identity Theft Laws, Penalties, and Charges | Criminal Law . CriminalDefenseLawyer.com . Retrieved 3 June 2017, from http://www.criminaldefenselawyer.com/crime-penalties/federal/identity-theft.htm
