Identity theft constitutes a serious violation of personal rights, imposing financial damages of $43 billion in 2023 and profound non-economic losses on victims across jurisdictions. Misappropriating personal information raises critical questions about criminal jurisdiction and enforcement authority in an interconnected society.
With over 40 years of experience practicing law, Richard A. Serafini is a federal criminal defense lawyer who can help you through the process.
The classification of identity theft within federal criminal law provides a definitive answer regarding its prosecutorial scope. This designation establishes clear parameters for investigation and enforcement, marking identity theft as a significant federal offense that demands a coordinated legal response.
Understanding Identity Theft: An Overview
33% of Americans have fallen victim to identity theft during their lifetimes. As technology advances, the avenues for committing such offenses have increased, making identity theft a complex and multifaceted problem.
Here are several examples of identity theft:
Purpose | Description |
Opening Fraudulent Credit Accounts | Use stolen personal information to open new credit accounts in the victim’s name. |
Filing False Tax Returns | File tax returns using stolen identities to claim refunds. |
Obtaining Medical Services | Stolen information can be used to receive medical treatment and services under someone else’s name. |
Accessing Financial Accounts | Use the information to access and withdraw money from bank accounts or other financial assets. |
Taking Out Loans | Use the stolen identity to take out loans, often with the intent to never repay. |
Committing Fraudulent Purchases | Use stolen credit card or account information to make unauthorized purchases. |
Renting Property or Signing Leases | Use the stolen identity to rent property, sign leases, or make purchases that are not paid for. |
Opening Utility Accounts | Using stolen personal details to open utility accounts (e.g., electricity, water, etc.) in the victim’s name. |
The repercussions for victims of identity theft can be severe, including financial loss, damage to credit scores, and emotional distress. Victims often face prolonged battles to restore their identity and correct their financial records.
The Federal Definition Of Identity Theft
Identity theft is recognized as a federal crime in the United States, which underscores the severity of the offense and the widespread impact it can have on individuals and institutions.
The federal definition of identity theft is codified in the Identity Theft and Assumption Deterrence Act of 1998 (18 U.S.C. § 1028), which provides a framework for prosecuting these offenses. This act criminalizes the production and possession of false identification documents and the use of another person’s identity with the intent to commit illegal activities.
The significance of a federal classification lies in the ability of the federal government to address crimes that cross state borders, as identity theft often does with the use of the internet and other interstate communication technologies.
The Federal Trade Commission (FTC) is tasked with handling consumer complaints regarding identity theft, and they work in conjunction with other agencies, such as the FBI and the Secret Service, to investigate and combat these crimes.
Applicable Federal Laws And Statutes
The legal framework for combating identity theft extends beyond the Identity Theft and Assumption Deterrence Act through several crucial pieces of legislation.
The Fair and Accurate Credit Transactions Act (FACTA) of 2003 (15 U.S.C. § 1681) plays a significant role in combating identity theft. FACTA includes provisions that allow consumers to place alerts on their credit histories if they suspect they are victims of identity theft and requires creditors to take precautionary measures before granting new credit.
The Gramm-Leach-Bliley Act (15 U.S.C. §§ 6801-6809) mandates financial institutions to protect consumers’ sensitive data, thus providing a line of defense against identity theft. The Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510-2522) and various cybercrime statutes also fortify legal defenses against identity theft by criminalizing unauthorized access to sensitive, electronically stored information.
These federal laws collectively establish a framework to deter, identify, and prosecute identity theft, safeguarding individuals’ personal information nationwide.
Penalties For Identity Theft Under Federal Law
Identity theft can lead to significant penalties. Convictions under the Identity Theft and Assumption Deterrence Act can result in up to 15 years imprisonment, substantial fines, and forfeiture of any property used to commit the crime. The severity increases based on factors like the number of victims, the amount of loss, and whether the crime involved organized criminal activity.
Aggravated identity theft (18 U.S.C. § 1028A), which occurs when identity theft is committed in connection with specific felonies, carries a mandatory additional two-year sentence. This sentence must run consecutively with any other punishment, extending the total incarceration period. If the crime involves terrorism, the required additional sentence increases to five years.
Under the Identity Theft Enforcement and Restitution Act of 2008 (18 U.S.C. § 1028), courts could issue orders for restitution to cover victims’ financial losses, including costs associated with rehabilitating credit and addressing the theft’s consequences. The sentencing process considers factors such as the defendant’s criminal history, the sophistication of the scheme, and whether the defendant held a position of trust.
Federal Agencies Involved In Combating Identity Theft
Multiple federal agencies work to combat identity theft. The Federal Trade Commission (FTC) serves as the central hub for identity theft response, operating IdentityTheft.gov and maintaining the Consumer Sentinel Network, a secure database of consumer complaints accessible to law enforcement. The FTC also leads consumer education efforts and coordinates with businesses on data security practices.
The Department of Justice prosecutes identity theft cases through U.S. Attorneys’ offices nationwide, focusing on major criminal operations. The FBI’s cyber crimes division investigates complex cases, including identity theft schemes, particularly those involving organized crime syndicates or cross-border activities. Their dedicated units target cyber-enabled financial crimes while maintaining strong partnerships with international law enforcement.
In addition, the U.S. Secret Service is also involved in preventing data breaches that could lead to identity theft. Meanwhile, the IRS Criminal Investigation Division focuses on tax-related identity theft and fraudulent tax refund schemes. These agencies frequently collaborate through joint task forces and share intelligence to strengthen their collective response to identity theft crimes.
How Federal And State Laws Interact On Identity Theft
The interaction between federal and state laws is crucial for a comprehensive legal framework to combat this offense effectively.
While federal law provides the overarching framework, state laws often address specific local concerns and enable the prosecution of cases that might not meet federal thresholds. Many states have enacted laws complementing federal statutes, some imposing stricter penalties or covering additional types of identity-related crimes.
Law enforcement coordination occurs through various mechanisms, including joint task forces, shared databases, and regular intelligence briefings. State and local agencies often work with federal authorities on cases that begin locally but reveal broader patterns or cross jurisdictional boundaries.
The dual jurisdiction system provides flexibility in choosing the most appropriate venue for prosecution based on factors such as case complexity, resource requirements, and potential penalties.
Example Case of Criminal Identity Theft
Philip Cummings, a former help desk employee at Teledata Communications Inc., orchestrated one of U.S. history’s largest identity theft schemes.
Between 1999 and 2002, he exploited his access to confidential passwords and codes, enabling him to download over 30,000 consumer credit reports. These reports were sold to a network of criminals, leading to fraudulent activities such as unauthorized credit card charges, bank account depletions, and the opening of loans in victims’ names.
The financial losses from this scheme are estimated to be between $50 million and $100 million. In January 2005, Cummings was sentenced to 14 years in prison for his role in the extensive identity theft operation.
How We Defend Identity Theft Cases
As a criminal defense lawyer, my approach to defending someone charged with identity theft is both methodical and client-focused. Identity theft is a serious charge. I firmly believe every individual deserves a robust defense to ensure his or her rights are protected.
Thoroughly Examining the Evidence
The first step I take in any identity theft case is a meticulous review of the evidence. This includes digital records, bank statements, emails, or any physical items the government claims tie my client to the alleged crime. If the case involves online activity, I look for weaknesses in the digital evidence—such as discrepancies in IP address tracking or evidence that could point to hacking or unauthorized use of my client’s accounts. Often, evidence is not as airtight as it first appears, and it is my job to uncover these vulnerabilities.
Challenging Intent
A key component of identity theft charges is intent. Prosecutors must prove beyond a reasonable doubt that my client intended to use someone else’s identity for fraudulent purposes. I carefully examine the circumstances surrounding the case and present alternative explanations when appropriate. Intent is an element of a crime that is rarely proved through direct evidence. Thus, the government presents indirect or circumstantial evidence to create a compelling inference that the defendant had criminal intent when performing the actions underlying the identity theft charge. This element is often the most difficult for prosecutors to prove and often serves as the lynchpin of a successful defense strategy.
Exploring Alternative Explanations
Another strategy I can employ is to investigate whether someone else could be responsible for the crime. This might involve looking into whether my client’s identity was stolen and used by the actual perpetrator. If there’s evidence that implicates someone else, I ensure that it is brought to the attention of the government and, if necessary, the trial jury. I also scrutinize witness statements and police reports for inconsistencies or gaps that could cast doubt on the government’s case.
Negotiating Plea Agreements or Mitigating Sentencing
In cases where the evidence against my client is substantial and compelling, I shift my focus to damage control. I leverage my experience to negotiate plea agreements that can reduce the severity of the charges or the penalties. For instance, I might work to have felony charges reduced to misdemeanors or negotiate sentencing alternatives, such as probation or restitution, instead of incarceration. My goal is always to achieve the best possible outcome for my client, even in challenging cases.
Protecting Constitutional Rights
Throughout the process, I vigorously defend my client’s constitutional rights. I challenge any evidence obtained through illegal searches or seizures and ensure that any violations of my client’s rights under the Fourth, Fifth, Sixth and/or Fourteenth Amendments are addressed in court. If law enforcement engaged in misconduct or negligent conduct, I file motions to suppress evidence or dismiss the case entirely.
At the heart of my defense strategy is a commitment to protecting my client’s interests and ensuring fair treatment under the law. Identity theft cases are often complex, but with a thoughtful and aggressive approach, I work tirelessly to build a defense that either clears my client’s name or mitigates the consequences faced.
Are You Being Investigated for or Charged with Identity Theft?
If you face charges for identity theft or are involved in an identity theft investigation, the Serafini Law Office can provide you with the best chance for a favorable outcome. Our team will diligently protect your freedom, rights, and reputation.
Mr. Richard A. Serafini is a seasoned defense attorney with over 40 years of legal experience.
A former Department of Justice senior trial attorney and a supervisor with the U.S. Securities and Exchange Commission, Mr. Serafini has prosecuted some of the most significant identity theft cases handled by the United States. His extensive experience in investigations and criminal law makes him your best chance for the best possible outcome.
Our law firm provides criminal defense representation throughout the United States, with a focus on the following cities and states: Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Florida, Pennsylvania, and New York.
Contact us today at (754) 223-4718 for a free consultation.