Identity theft usually involves someone gaining access to another person's personal and identifying information, and using that information to gain access to credit or other financial resources. With the increased use of computers for almost every facet of daily life, identity theft has become one of the fastest growing crimes in the country. The federal crime of identity theft has serious consequences, including heavy fines and jail time.
Federal Identity Theft
Under 18 U.S.C. § 1028, it is a federal crime when someone “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of federal law.”
The penalties for violating federal identity theft laws can include up to 15 years in jail, with the possibility of heavy fines. If a victim of identity theft suffered some financial loss, the courts may require a defendant to pay the costs of restitution to the victim.
Identity theft may not even have to occur before federal prosecutors charge someone with federal criminal charges. Attempted identity theft carries the same penalties as if the theft had occurred. Conspiracy to commit identity theft is treated similarly.
Helping another person commit identity theft can also be a crime. It may be a crime even if someone never gained any financial benefit by using another person's information.
Identity theft often involves using another person's identifying information, such as their name, social security number, or credit card, without their permission for the purpose of committing fraud or some other crime. However, identity theft can also include a variety of crimes, including check fraud, immigration fraud, postal fraud, medical fraud, and forgery. According to the Bureau of Justice, some of the prime areas of identity theft growth include employment-related identity theft, medical identity theft, benefit fraud and intergenerational identity theft.
Aggravated Identity Theft
Under 18 U.S.C. § 1028A, aggravated identity theft can be charged when identity theft occurs during and in relation to another predicate felony. A conviction for aggravated identity theft can add a two-year sentence to the underlying felony conviction. Felony crimes that fall under this section include, embezzlement, theft of public money, immigration fraud, wire fraud, healthcare fraud, and marriage fraud.
There is a separate provision for enhanced penalties when identity theft occurs during, in relation to terrorism charges. This can add another 5 years on top of the underlying federal terrorism charge penalties.
Personal and Financial Information
Personal information can be accessed from a number of methods, both online and in the real world. In the past, personal information could be easily accessed through going through somebody's trash or their mail, looking for credit card offers, financial statements, or other identifying material.
Other methods include someone calling by phone, pretending to be a bank representative, to “confirm” bank account information. However, identity theft has gotten much more sophisticated, and personal financial information for thousands of people can be accessed by computer hackers, including malware or spyware, and hacking computer networks and databases.
Due to the increased access to computers and smartphones, and how obsolete old technology becomes, when disposing of old devices it becomes more difficult to hide and erase personal information. Old discarded PCs and phones can be searched for personal data.
Personal and financial information can be used in a number of ways. Information taken from someone's credit card receipt can be used to order products online or even to fabricate another credit card. A pre-approved credit card offer from the mailbox can be sent in with a change of address to allow others to use a credit card issued under someone else's name. Others may apply for a loan or line of credit using another person's identity.
Identity Theft Investigations
Identity fraud can involve local, state and a federal agencies, and can be prosecuted as a state or federal crime. Some of the federal agencies involved in investigating and prosecuting identity theft include the Federal Bureau of Investigation (FBI), the Department of the Treasury, the Department of Justice, Secret Service, US Postal Inspection Service.
Federal law enforcement agencies may be made aware of possible identity theft by individuals themselves. People who discover charges on their credit card they did not make may report their suspicions to police. However, for many people, identity theft is discovered only after they apply for a loan or credit card, and find they are denied, or are called by debt collectors for a debt they did not incur.
Banks, financial institutions and entities dealing in credit information may also report suspicious activity, and even conduct their own internal investigation. Identity theft and identity fraud are very serious charges. If you or someone you know becomes the target of an investigation, or after receiving a subpoena, you may not know how to respond.
As soon as you become aware of an investigation, you should consider contacting legal counsel. Experienced federal criminal defense lawyers can help you navigate the difficult process ahead. You don't have to wait until criminal charges are filed to seek help. Whether or not you want to cooperate with government investigators is a serious decision. Cooperation could lead to a resolution of any possible charges against you; however, it could also expose you to federal criminal liability.
Federal Identity Theft Defense
The defenses available to someone charged with identity theft or identity fraud will depend on the individual circumstances surrounding the case. These legal defenses may include fighting criminal charges because there was no intent to commit a crime, they were not the person responsible for any identity theft, or the information was never used for an unlawful purpose.
Due to the seriousness of federal identity theft charges, and the number of other laws and agencies involved in identity theft and identity fraud cases, the factual and legal issues can get complicated. An experienced team of lawyers with a focus on federal criminal defense will be able to clarify the issues facing their client during an investigation for identity fraud, and defend their client in court.