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Identity Theft and Assumption Deterrence Act of 1998

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Citation Edit

Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318, 112 Stat. 3007 (Oct. 30, 1998), codified at 18 U.S.C. §1028.

Overview Edit

The Act criminalized identity theft, namely:

knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.

It was the first law to criminalized identity theft at the federal level. In addition to making identity theft a crime, this act provided penalties for individuals who either committed or attempted to commit identity theft and provided for forfeiture of property used or intended to be used in the fraud.

It also empowered the FTC to "log and acknowledge the receipts of complaints by individuals who certify that they have a reasonable belief" that their personally identifiable information has been “assumed, stolen, or otherwise unlawfully acquired.”

The Act provides an expansive definition of identity theft. It includes the misuse of any identifying information, which could include name, SSN, account number, password, or other information linked to an individual, to commit a violation of federal or state law. The definition thus covers misuse of existing accounts as well as the creation of new accounts.

Prior to passage of the Act, identity theft was not specifically regulated or investigated as a crime. Law enforcement had to relied instead upon a few federal statutes to protect the information necessary to commit identity theft and upon general anti-fraud provisions to punish and redress any injury. Only when identity theft rose dramatically in the 1990s, did Congress decide to address the issue directly.

The Act has two primary purposes: to make the unlawful transfer and use of identity information a federal criminal offense and to establish a right to restitution.[1]

Prohibited activities Edit

The Act, inter alia, prohibits fraud in connection with identification documents under a variety of circumstances.[2] Its central provision states that “[w]hoever knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid and abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable State or local law” shall be punished.[3]

Certain offenses under the statute relate directly to consumer identity theft, and impostors could be prosecuted under the statute. For example, the statute makes it a federal crime, under certain circumstances,[4] to knowingly and without lawful authority produce an identification document or false identification document; or to knowingly possess an identification document that is or appears to be an identification document of the United States which is stolen or produced without lawful authority knowing that such document was stolen or produced without such authority.[5]

It is also a federal crime to knowingly transfer or use, without lawful authority, a means of identification of another person with the intent to commit, or aid or abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law.[6]

The Act also enables the United States Secret Service, the FBI and other law enforcement agencies to combat these crimes directly.[7]

Penalties Edit

The punishment for offenses involving fraud related to identification documents varies depending on the specific offense and the type of document involved.[8] For example, a fine or imprisonment of up to 15 years may be imposed for using the identification of another person with the intent to commit any unlawful activity under state law, if, as a result of the offense, the person committing the offense obtains anything of value totaling $1,000 or more during any one-year period.[9] Other offenses carry terms of imprisonment up to three years.[10] However, if the offense is committed to facilitate a drug trafficking crime or in connection with a crime of violence, the term of imprisonment could be up to twenty years.[11] Offenses committed to facilitate an action of international terrorism are punishable by terms of imprisonment up to twenty-five years.[12]

FTC database Edit

The Act instructs the Federal Trade Commission to receive complaints of identity theft, provide information to targets, refer complaints to consumer reporting agencies and appropriate law enforcement agencies, and makes victims eligible for restitution under existing law. The FTC established the Identity Theft Data Clearinghouse in November 1999 to collect identity theft complaints from victims. The FTC’s identity theft site is available here.

Consumer Sentinel is the web portal by which annual identity theft reports are made available to the public, and where law enforcement can further mine the data.

Criticisms Edit

The enforcement scheme has several weaknesses. First, a target of identity theft cannot sue directly. He or she must convince a law enforcement agency to investigate and the Department of Justice to prosecute. Second, a target is not usually considered a “victim” under the Victim and Witness Protection Act of 1982 for purposes of restitution.[13] The class of victims extends primarily to those “directly and proximately harmed,”[14] like banks, merchants, and credit card companies who suffer a direct economic loss, and often not to the targets themselves who suffer only indirect economic losses, like attorney’s fees and the costs associated with correcting credit reports.[15] Third, even proper “victims,” like merchants, cannot obtain restitution from a judgment-proof thief.

References Edit

  1. Martha A. Sabol, "The Identity Theft and Assumption Deterrence Act of 1998 — Do Individual Victims Finally Get Their Day in Court?," 11 Loy. Consumer L. Rev. 165, 169 (1999).
  2. 18 U.S.C. §1028. The statute lists several actions that constitute fraud in connection with identification documents. However, for the purposes of this article, they do not all relate to consumer-related identity theft, i.e. situations where a consumer's Social Security Number or driver's license number may be stolen and used to establish credit accounts by an impostor.
  3. 18 U.S.C. §1028(a)(7). The Act elsewhere defines "means of identification" as
    any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any —
    (A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
    (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
    (C) unique electronic identification number, address, or routing code; or
    (D) telecommunication identifying information or access device. . . . Id. §1028(d)(4).
  4. According to the statute, the prohibitions listed apply when "the identification document or false identification document is or appears to be issued by or under the authority of the United States or the document-making implement is designed or suited for making such an identification document or false identification document," the document is presented with the intent to defraud the United States; or “either the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce, including the transfer of a document by electronic means, or the means of identification, identification document, false identification document, or document-making implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this section." Id. §1028(c).
  5. Id. §1028(a)(1), (2).
  6. Id. §1028(a)(7).
  7. Statement by the President of the United States, 34 Weekly Comp. Pres. Doc. 2203 (Oct 30, 1998).
  8. Id. §1028(b).
  9. Id. §1028(b)(1)(D).
  10. Id. §1028(b)(2).
  11. Id. §1028(b)(3).
  12. Id. §1028(b)(4).
  13. 18 U.S.C. §§3663-64.
  14. Id. §§3663(a)(2) & 3663A(a)(2).
  15. See United States v. Blake, 81 F.3d 498, 505-07 (4th Cir. 1996) (full-text).

External resource Edit

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