U.S. DOJ Proposes Legislation to Strengthen Identity Theft Laws

The U.S. Department of Justice submitted proposed legislation to Congress on Thursday, looking to strengthen laws to fight the burgeoning problem of identity theft.^[1] The bill, or the Identity Theft Enforcement and Restitution Act of 2007, seeks to make sure identity theft victims are paid back for the time they spend trying to repair the damage inflicted upon them and their financial standing.^[2] The bill also would add to the current identity theft and aggravated identity theft statutes, which focus on stealing the identity of individuals; the bill supplements that by making sure people who steal information from companies and organizations can be prosecuted.^[3]

"Identity theft has impacted the lives of millions in the United States, and its perpetrators are constantly inventing new ways to commit their crimes……..This proposed legislation is a firm step in the right direction in updating our identity theft laws to meet the needs of investigators and prosecutors who are working daily to punish identity thieves, and help victims put their lives back together," said Attorney General Alberto R. Gonzales, in a statement.^[4]

The bill also seeks to make sure that federal law enforcement agencies have jurisdiction over the theft of identifying information by closing a loophole in the current statute; under the proposed act, federal jurisdiction could be obtained if the victim's computer is used in interstate or foreign commerce, the same standard used in other computer hacking offenses.^[5] Additionally the bill would ensure that federal law "appropriately penalizes" identity thieves for the use of spy ware and keyloggers, as well as expand the scope of the "cyber extortion" provision so it covers crimes like threats to steal or corrupt data on a victim's computer.^[6]

Identity theft
This particular crime is covered under 18 U.S.C. § 1028 wherein it states that it is fraud and related activity in connection with identification documents, authentication features, and information.^[7] The punishments vary from fines, imprisonment for not more than 5 years, 20 years or 30 years or both depending on the number of false identification documents, their issuing authority and uses.However, in 2003, Section 1028 was amended to add Section 1028A aggravated identity theft, which provides stiffer penalties for identity theft including a mandatory two-year prison term.^[8]

President Bush remarked when he signed the bill, “The law I sign today will dramatically strengthen the fight against identity theft and fraud. This new law establishes in the federal criminal court the offense of aggravated identity theft. And someone convicted of that crime can expect to go to jail for stealing a person's good name. These punishments will come on top of any punishment for crimes that proceed from identity theft. For example, when someone is convicted of mail fraud in a case involving stolen personal information, judges will now impose two sentences, one for mail fraud, and one for aggravated identity theft. Those convicted of aggravated identity theft must serve an additional mandatory two-year prison term. Someone convicted of aggravated identity theft, such as using a false passport in connection with a terrorism case, would receive an additional prison sentence of five years. In addition, judges will not be allowed to let those convicted of aggravated identity theft serve their sentence on probation.”^[9]

Federal criminal defense attorney Douglas McNabb has previously discussed, at length, the federal crimes of identity theft and aggravated identity theft in his blog, here.

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^[1] Sharon Gaudin, DoJ Pitches Legislation To Strengthen Identity Theft Laws, InformationWeek, July 20, 2007, available at http://www.informationweek.com/news/showArticle.jhtml?articleID=201200149 (last visited July 20, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] 18 U.S.C. § 1028 (2007).
^[8] 18 U.S.C. § 1028A (2005).
^[9] President Bush Signs Identity Theft Enhanced Penalty Act, White House News Release, July 15, 2004.