Tuesday, May 05, 2009

Identity Theft and Real People

The U.S. Supreme Court recently decided a case that deals with an issue I wrote about in an earlier post. So I thought I'd update that post a bit.

The post was on an issue that had arisen under federal criminal law: whether someone can be convicted of identity theft if they did not know they were using the identity of a real person.

As I explained in that post, the federal identity theft statute makes it a crime “knowingly” to use the means of identification of another person. In the case I wrote about, the defendant cloned her Social Security number; that is, she used it to produce a series of fabricated Social Security numbers, at least one of which turned out to belong to a real person. She argued that she could not be convicted of violating the statute because he had no idea she was using a real person’s identity; she though she was committing fraud, not identity theft.

In the post, I said I think she should win because what she committed is fraud and could therefore be prosecuted as fraud. The premise behind identity theft statutes is that they reach harmful conduct we haven’t already criminalized, i.e., using someone else’s personal identifying information without their permission.

As you may have heard, the U.S. Supreme Court decided a case raising this issue on Monday of this week. The case is Flores-Figueroa v. United States, 2009 WL 1174852.

The Flores-Figueroa Court held that to convict someone of identity theft in violation of 18 U.S. Code § 1028A “requires the Government to show that the defendant knew the means of identification at issue belonged to another person.” In reaching this result, the Court noted that the statute has both a fraud crime and a theft crime, and that
Congress separated the fraud crime from the theft crime in the statute itself. The title of one provision (not here at issue) is `Fraud and related activity in connection with identification documents, authentication features, and information.’ 18 U.S.Code § 1028. The title of another provision (the provision here at issue) uses the words “identity theft.” § 1028A (emphasis added) Moreover, the examples of theft that Congress gives in the legislative history all involve instances where the offender would know that what he has taken identifies a different real person. H.R.Rep. No. 108-528, at 4-5, U.S.Code Cong. & Admin.News 2004, pp. 779, 780-81 (identifying as examples of``identity theft` ‘dumpster diving,’ `accessing information that was originally collected for an authorized purpose,’ `hack[ing] into computers,’ and `steal[ing] paperwork likely to contain personal information’).
Flores-Figueroa v. United States, supra.

I assume those, like the woman I wrote about last fall, who were convicted by courts that did not instruct the jury the defendant had to know the identification documents belong to another person will be bringing appeals. Sometimes, when the Supreme Court issues a decision it specifies that the decision is only prospective; that is, it doesn’t apply to cases already decided.

The Court does this when it’s deciding criminal procedure cases, e.g., cases that set the rules police have to follow in investigating crimes. If the Court changes a rule that tells police what they can and cannot do in, say, searching a car, it applies that rule prospectively because officers in the past cannot be expected to have followed it. You can’t follow a rule that didn’t exist.

Here, though, the Court is saying that this statute has always required that the defendant know the identification information belonged to a real person. This means that any case in which a defendant was convicted without the jury being told they had to find that the government proved beyond a reasonable doubt that the defendant (like the one I wrote about last fall) knew the identification information belonged to a real person resulted in a conviction that is null and void (unless courts can come up with some way around that, which I doubt).


George E. Curtis, J.D. said...

I agree with your analysis. However, what if the person is a "real" dead person? There are numerous instances where the SSNs of dead persons have been used. Let's further assume that the perp knows that he/she is using the SSN of a dead person and even is aware of the identity of that dead person. Now what? What does "real" mean?

Susan Brenner said...

That's a very good point. I'm going to do a post on that issue, hopefully this week.

The short answer is that some states, anyway, address the issue of deceased identity theft victims in their ID theft statutes. More to come . . . .