Identity Theft as a Federal Crime: An Overview of Offenses, Sentencing, and Defense Strategies

Identity theft is a rapidly growing white collar crime that has become a significant concern for both authorities and individuals. As a criminal defense attorney specializing in federal criminal charges, it is crucial to understand what makes identity theft a federal crime, how the government tackles it, and the various implications for those accused. This essay aims to provide an overview of identity theft as a federal crime, focusing on its definition, examples, sentencing guidelines, and common defense strategies.

What Makes Identity Theft a Federal Crime

1.1 Jurisdiction

One of the primary factors that make identity theft a federal crime is the issue of jurisdiction. Identity theft often transcends state lines, especially as most of these crimes are committed electronically. This puts identity theft within the jurisdiction of federal agencies, such as the Department of Justice and the Federal Bureau of Investigation (FBI).

1.2 Impact on National Economy

Identity theft not only affects individuals but can also have significant implications on banks, retailers, and other businesses. The widespread nature of this crime and its economic impact make it a federal concern that requires a coordinated approach to address and prevent it.

Examples of Identity Theft as a Federal Crime

2.1 Bank and Credit Card Fraud

Identity thieves often use stolen personal information to open bank accounts or obtain credit cards in the victim's name, leading to substantial financial losses and harm to the individual's credit.

2.2 Tax Fraud

Using another person's Social Security number, identity thieves may file fraudulent tax returns to claim refunds or obtain employment, which leads to tax issues for the victim.

2.3 Benefits Fraud

Another form of identity theft involves applying for government benefits, such as Social Security, unemployment, or disability benefits, using the victim's information.

2.4 Medical Identity Theft

By obtaining access to a victim's health insurance information, an identity thief can receive medical treatment or prescription drugs in the victim's name, potentially leading to serious consequences for the victim's health and finances.

Sentencing Guidelines for Identity Theft

3.1 Federal Sentencing Guidelines

The United States Federal Sentencing Guidelines are used to determine appropriate penalties for identity theft offenses, considering factors such as the nature of the crime, the number of victims, the financial losses incurred, and the offender's criminal history.

3.2 Identity Theft and Assumption Deterrence Act

Congress passed the Identity Theft and Assumption Deterrence Act in 1998, which criminalizes identity theft and provides for penalties up to 15 years imprisonment and a fine of up to $250,000.

3.3 Identity Theft Enforcement and Restitution Act

Enacted in 2008, this act expands the range of identity theft offenses and increases restitution provisions for victims, including covering the cost of clearing their credit history and other legal expenses.

Federal Investigation Process for Identity Theft

The process of investigating identity theft on a federal level is a complex issue that demands scrutiny. This task is usually handled by federal agencies such as the FBI and the Department of Justice, given the often cross-jurisdictional nature of these offenses. These agencies employ a multitude of advanced techniques to unearth and understand the depth of an identity theft case. Comprehensive investigations involve digital forensics where experts comb through electronic evidence like computer systems, networks, and digital storage media to find proof of identity theft. 

An important part of both proving and prosecuting identity theft involves tracing the actions of the accused to establish an illegal intention and eliminate the possibility of inadvertent involvement. By sharpening understanding of the structures and strategies utilized in federal identity theft investigations, legal defense teams can better prepare their cases, building strong defenses equipped to confront this modern-day scourge.

Role of Federal Agencies in Identity Theft Cases

The role of federal agencies in combating identity theft is multifaceted, ranging from prevention and investigation to prosecution. The Federal Trade Commission (FTC), for instance, plays a key function in preventing identity theft by educating consumers and businesses about securing personal information. On the investigatory side, the Federal Bureau of Investigation (FBI) deploys specialized units adept at handling complex, cross-state, and international cybercrimes including identity theft. 

The Department of Justice (DOJ), on the other hand, has the authority to prosecute these offenses under federal law, especially when theft transcends state boundaries. These agencies also offer resources for victims of identity theft, aiding in credit repair and identity recovery. By detailing the roles, responsibilities, and resources provided by these federal agencies in the article, readers would gain a more comprehensive understanding of the complex system set up to tackle, contain, and resolve incidents of identity theft.

Defense Strategies for Identity Theft

4.1 Lack of Knowledge or Intent

A successful defense strategy may involve proving that the accused did not knowingly or willingly participate in the identity theft scheme, or that they were unaware that the documents or information they possessed belonged to someone else.

4.2 Fourth Amendment Violations

In cases where evidence against the accused was obtained through illegal searches or seizures, a defense attorney may seek to suppress that evidence based on Fourth Amendment violations.

4.3 Insufficient Evidence

Challenging the sufficiency and reliability of the evidence provided by the prosecution is another strategy to establish reasonable doubt about the accused's participation in the identity theft crime.

Final Notes

Identity theft as a federal crime is a complex issue that requires a deep understanding of the associated laws, jurisdictional issues, and sentencing guidelines. As a criminal defense attorney, it is essential to stay informed about developments in identity theft law and to develop effective defense strategies that cater to the unique challenges presented by these cases. By doing so, attorneys can better protect the rights and interests of their clients while ensuring that justice is served.

Further Reading:

  1. Kolsrud, J. (2023). Arizona Identity Theft Lawyers,
  2. Johnson, A. N. (2013). The New Identity Theft: The Inadequacy of the Federal Response and the Argument for Federal Preemption. UCLA Journal of Law and Technology, 17(1), 1-50.
  3. Brenner, S. W. (2007). Identity Theft and the Internet: The Case for a New Offense in the Digital Age. Journal of International Commercial Law and Technology, 2(1), 5-23.
  4. Eisner Gorin LLP, (2022). Federal Identity Theft Law | 18 U.S.C sec. 1028