Identity Theft Harassment?

I’ve written about harassment and about identity theft, but this post is about something different: A’s using B’s identity (without permission) to harass C.

I recently discovered that at least two states -- Arkansas and Massachusetts -- make this a crime, i.e., make identity theft harassment a crime.

The Arkansas identity theft harassment statute provides as follows:

A person commits nonfinancial identity theft if he or she knowingly obtains another person’s identifying information without the other person’s authorization and uses the identifying information for any unlawful purpose, including . . . [t]o harass another person.

Arkansas Code § 5-37-227(b)(2). The statute defines identifying information as follows:

`Identifying information’ includes, but is not limited to, a:
(A) Social security number;
(B) Driver's license number;
(C) Checking account number;
(D) Savings account number;
(E) Credit card number;
(F) Debit card number;
(G) Personal identification number;
(H) Electronic identification number;
(I) Digital signature; or
(J) Any other number or information that can be used to access a person's financial resources. . . .

Arkansas Code § 5-37-227(c)(5).

The Massachusetts statute makes it a crime for someone “with intent to defraud” to pose “as another person without the express authorization of that person” and use “such person's personal identifying information to . . . harass another”. Massachusetts General Laws Annotated 266 § 37E.

I can’t find any other states with laws like these (though I could have missed some). And I can’t find any prosecutions that have been brought under these statutes, so I’m left to speculate as to precisely what they criminalize and why they’re necessary.

In analyzing those issues, we’ll use the hypothetical noted above: A uses B’s identity without B’s permission to harass C.

If the evidence proves that A harassed C, then the use of B’s identity would, I think, be irrelevant to the process of prosecuting A for harassment. I don’t see why A’s using B’s identity to carry out the harassment would in any way prevent A’s being prosecuted for harassment. As I’ve noted before, the crime of harassment consists of engaging in a course of conduct (persistent behavior) that is intended to and does either cause the victim substantial emotional distress or cause the victim to be annoyed, harassed and alarmed. (Some harassment statutes are based on inflicting emotional distress, others are based on harassing, annoying and alarming the victim.) If A did that, then I don’t see how his use of B’s identity is relevant to the viability of this charge.

I think what the statutes are concerned with is the fact that if A uses B’s identity to harass C, we have two victims (B and C), the harm to only one of which (C) can be redressed with existing criminal law. As I noted above, A can clearly be prosecuted for – and convicted of – harassing C if his conduct otherwise satisfies the elements of the crime of harassment (intentionally inflicting emotional distress on or harassing, annoying and alarming C).

The problem is that most identity theft statutes can’t be used to prosecute A for the harm he inflicted on C. As I’ve noted before, identity theft statutes define a property crime: the identity thief uses another person’s identifying information to get money or property to which he or she is not lawfully entitled. Financial identity theft crimes like the ones these statutes define are really fraud crimes; the identity thief uses his victim’s identity, without being authorized to do so, to trick financial institutions or businesses into giving him property to which he is not lawfully entitled.

Here, though, A doesn’t use B’s identity to get property he’s not entitled to, which means he can’t be prosecuted under a traditional, financial identity theft statute. The Arkansas and Massachusetts statutes define (as the Arkansas statute notes) nonfinancial identity theft . . . using someone’s identity to harass someone else. The harm inflicted on B is that his identity is used to commit a crime, which could conceivably result in B’s being held liable for the crime if A is really clever at hiding his tracks.

So what I think these statutes are doing is making sure that the harm to the intermediate victim – the person whose identity is used to harass someone else – can be prosecuted. I don’t think they are specifically based on the notion that A is, in a sense, trying to “frame” B for the harassment he’s inflicting on C. I think these statutes probably encompass that notion, but I also suspect they’re intended to encompass a broader, more nebulous harm: the corruption – the taint – that A imposes on B’s identity. By using B’s identity to commit harassment, A essentially adulterates B’s identity; he taints it with the implication of criminal conduct.

That sounds like a good idea to me.