Theft of Identity

AuthorRichard Leiter
Pages239-257

Page 239

With modern technology and the attendant changes to the ways we live come new hazards and new crimes. One of the crimes to emerge with new virulence in this high-tech age is that of theft of identity. However, it should be made clear that this is a crime that is as old as history itself. From Jacob stealing Esau’s birthright, to Jean Val-jean becoming the Mayor, Monsieur Madeleine, to illegal immigrants to the United States fleeing despots of Central America, there have been many different reasons for appropriating another’s identity. The computer age has simply made the act very easy, lucrative and possible in proportions and in volumes never before imagined.

As the name of the crime suggests, this crime occurs whenever someone appropriates another’s identity or portion of it and uses it to appropriate the victim’s money, credit or other thing of value. These crimes are particularly susceptible to abuse in an electronic environment because of the relative anonymity of online or telephone transactions. With nothing more than a credit card number, social security number or bank number, an unscrupulous person may be able to steal a victim’s money or defraud unsuspecting banks or credit card companies by applying for and obtaining credit cards or credit lines.

But money is not the only goal of identity thieves. People may simply want a driver’s license, passport, academic credentials or a credit history. With such things, people can enter or reside in the country illegally, or simply start lives over again.

The occurrence of these sorts of crimes is growing steadily. Relatively scarce a half century ago, official estimates now place the occurrence of identity theft at nearly a million a year. In response to the growing concern and attendant losses to businesses and victims, many states have begun to enact legislation to protect the public.

To date, 42 states have responded with laws specifically making identity theft a crime. It should be noted that in all states, theft by whatever means is a crime. The purpose of these statutes is to especially punish people who steal parts of a person’s personal identity such as private financial or other personal information. In many cases, these statutes act as enhancements to existing laws. For example, in some states, people found guilty of theft under the Theft of Identity Statute will be automatically guilty of a felony, regardless of the amount stolen. All states have an established dollar amount, usually $1000, below which a theft becomes a misdemeanor. However, in a state without the statute, a person stealing the same amount of money using the same method may only be guilty of a misdemeanor.

There is considerable variation among the states on the particular provisions of the statutes. For example, Alabama and Kentucky have included provisions that make “trafficking” in identities or identity information illegal and state that possession of five or more identities creates a presumption that the person is guilty of trafficking. Some states have also included provisions that list various aggravating factors that will further enhance these crimes. For example, Florida provides for greater penalties if the crime is committed with public records, and Illinois enhances penalties if the crime is perpetrated against an elderly person.

Page 240

Table 14: Theft of Identity
Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
ALABAMA
Ala. Code §§13A-8-190, et seq. No previous convictions & loss of $500 or less: class A misdemeanor; previous convictions or loss of more than $500: class C felony Restitution for any party suffering loss as a result of the criminal activity Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors Civil action allowed Greater of $5,000 per incident or 3 times the actual damages; attorney fees and court costs Statutes create the related crimes of ‘Trafficking in Stolen Identities’– a class B felony, and ‘Obstructing justice using a false identity’ – a class C felony
ALASKA
ARIZONA
Ariz. Rev. Stat. §§13-2001–13-2010; 13-2101–13-2110 (2004); 44-1373 (2004) Automatic class 4 felony Any prosecuting authority

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Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
ARKANSAS
Ark. Code Ann. §5-37-227 (Michie 1999) Automatic class D felony Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors Violation also constitutes an unfair or deceptive practice under the Deceptive Trade Practices Act, Ark. Code Ann. §4-88-101 (Michie 1995) et seq.
CALIFORNIA
Cal. Penal Code §§530.5 (West 1998) et seq. Cal. Civil Code §1798.93 (West 2001) Identity theft is a criminal offense; imprisonment in county jail for up to one year, or $1,000 max. fine, or both; or imprisonment in state prison, $10,000 max. fine, or both Any prosecuting authority Civil action is allowed against those who make a mistaken claim against the victim of identity theft For claims brought against victim as a result of identity theft, victim may receive a declaration that he is not obligated on the claim, an injunction to stop attempts to collect, actual damages, attorney fees and costs, and a possible civil penalty up to $30,000 Department of Justice is required to establish a database of identity theft victims (to help clear their names); there are several other measures to assist identity theft victims

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Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
COLORADO
Colo. Rev. Stat. §13-21-109.5 (1998) Criminal offense limited to identity theft using another’s social security number Any prosecuting authority Civil action allowed Victim may recover preliminary and equitable relief as court deems appropriate, and greater of actual damages or liquidated damages up to $10,000; court may assess attorney fees and other reasonable litigation costs
CONNECTICUT
Criminal: Conn. Gen. Stat. §53a-129a (2001); Civil: Conn. Gen. Stat. §52-571h (2001) Automatic class D felony Any prosecuting authority Civil action allowed Greater of $1,000 or treble damages; costs and reasonable attorney fees if plaintiff prevails

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Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
DELAWARE
Del. Code Ann. Tit. 11, §854 (2000) If victim is less than 62 years of age: class E felony; If victim is 62 or older: class D felony Full restitution ordered to victim, including lost wages, reasonable attorney fees Any prosecuting authority Person who possesses credit cards, or other documents of another for purpose of identity theft guilty of ‘possession of burglar’s tools’ (class F felony) Del. Code Ann. Tit. 11, §828 (2000)
DISTRICT OF COLUMBIA
If loss is less than $250: 2nd degree offense; If loss is more than $250: 1st degree offense; If victim is 65 years of age or older: imprisonment or fine can be up to 1½ times maximum imprisonment or fine otherwise allowed
FLORIDA
§817.568, .569 3rd degree felony; restitution to victim may be ordered, including attorney’s fees; if loss is more than $5000 or involves multiple victims: grading may be increased to 2nd or 1st degree felony Any prosecuting attorney Civil action allowed If public records used to commit offense, the offense is reclassified to next higher degree

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Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
GEORGIA
Ga. Code Ann. §§16-9-120 (1998) et seq. Identity theft is a criminal offense; not less than 1 nor more than 10 years imprisonment or a fine not to exceed $100,000, or both; restitution to any victims may be ordered Attorney General or district attorney in county where crime committed Criminal statute does not apply to those who lawfully obtain credit information for a bona fide commercial transaction or who exercise rights of a creditor in good faith
HAWAII
§708-839.6 Class A felony for identity theft in the 1st degree; class B felony for 2nd degree identity theft; class C felony for 3rd degree identity theft Any prosecuting attorney
IDAHO
Idaho Code §18-3126, 3128 (1999) Identity theft is a criminal offense; misdemeanor, fine up to $1,000 or up to 1 yr. in county jail or both; felony if loss exceeds $300, fine up to $50,000 or max. of 5 yrs. in prison or both Any prosecuting authority

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Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
ILLINOIS
720 Ill.Comp. Stat. 5/16G-1 (West 1999) et seq. Loss not exceeding $300: class A misdemeanor; if previous conviction for identity theft or several other theft and fraud related crimes: class 4 felony; loss exceeding $300 but not exceeding $2,000: class 4 felony; loss exceeding $2,000 but not exceeding $10,000: class 3 felony; loss exceeding $10,000 but not exceeding $100, 000: class 2 felony; loss exceeding $100,000: class 1 felony “Aggravated Identity Theft” occurs when the victim is 60 years of age or older or disabled; if loss does not exceed $300: class 4 felony; if loss exceeds $300 but does not exceed $10,000: class 3 felony; if loss exceeds $10,000 but does not exceed $100,000; class 2 felony; if loss exceeds $100,000: class 1 felony; any subsequent offense regardless of loss: class X felony Any prosecuting authority Civil action allowed May recover court costs, attorney’s fees, lost wages, and actual damages
INDIANA
Ind. Code §35-43-5-3.5 (2001) Automatic class D felony Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors
IOWA
Criminal: Iowa
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