Does identity theft require the theft of the victim's physical documents?

Generally, identity theft, also called identity fraud, does not require the theft of the victim’s physical documents. While stealing a person’s credit card and driver’s license and using the items to go on a shopping spree is one kind of identity theft, identity theft laws target a much broader range of criminal activity.

For general information on the crime of identity theft, see The Crime of Identity Theft.

What is Identity Theft?

While laws vary from state to state, identity theft is usually committed by using another person’s personal identifying information (see below) to obtain goods and services, or impersonate that person for any reason. Generally, lawmakers have focused on the improper collection and use of information, rather than the theft of physical documents. In fact, a person who steals a personal document, such as a driver’s license, without intending to use it improperly would probably be prosecuted for theft, not identity theft.

For more information on theft, see Petty Theft & Other Theft Laws.

Identity thieves access private information and use it for their own gain – the method of obtaining the information does not matter. For example, thieves buy credit card numbers (stolen online) and use them to create their own credit cards, where the purchases are then charged to the victim’s account. This can happen even if the original card never leaves the owner’s possession. Victims sometimes unwittingly divulge their own personal information to others, such as thieves posing as doctor’s office employees confirming billing information.

Personal Identifying Information

States define personal identifying information differently. Generally, personal information includes any number or other information that identifies a particular person or can be used to access financial accounts. Examples of personal identifying information include an individual’s

  • name, address, and telephone number
  • birth date
  • driver's license and social security number
  • place of employment and employee identification number
  • fingerprints
  • personal identification number and passwords
  • mother's maiden name, and
  • bank account or credit card information.

While much personal information can be found on a card or piece of paper, some of it exists only in digital or electronic form and there is no physical document to steal. In most states, either as part of the identity theft law, or as a separate crime, it is also illegal to possess someone else’s personal identifying information for the purpose of committing fraud or some other crime, even if the defendant does not use the information.

How Do Thieves Access Personal Information?

There are countless ways in which identity thieves access information, and the tactics and technology are constantly changing. Identity thieves and their accomplices do steal personal documents from wallets and people’s homes. However, identity thieves also find personal information in public records and from pilfered mail and trash. They buy information from unscrupulous employees who have access to it through their jobs. Online, identity thieves engage in “phishing” (sending out scam emails or setting up fake websites) to solicit people to reveal their personal information. Thieves can attach devices called scanners or skimmers to copy credit or debit card information at cash registers and automatic teller machines. They hack into personal and business computer networks and hard drives.

For more information on hacking, see Hacking into a Company’s Database.

Protecting Yourself

How can you protect yourself? Millions of Americans are victims of identity theft each year and the number is increasing. The Federal Trade Commission’s website (www.ftc.gov) has information on how to defend against identity theft (see Protecting Your Identity) and what to do if you are victimized (see Repairing Identity Theft).

Punishment for Identity Theft

The penalties for identity theft vary from state to state. Many states make identity theft a felony, punishable by one year or more in state prison. Oftentimes, the more the defendant enriches him or herself at the victim’s expense, the longer the possible prison sentence. In almost every state, the court can order the defendant to pay restitution to the victim for any out-of-pocket expenses the victim has to pay as a result of the crime, including the costs of resolving any collection actions or lawsuits against the victim and clearing the victim’s credit history. In some states, victims of identity theft may also sue thieves in civil court for damages (money). A conviction for identity theft – like any fraud conviction – can result in a serious criminal record and make it difficult (or impossible) to qualify for certain jobs or obtain a professional license, even years later.

Obtaining Legal Assistance

If you are charged with identity theft, whether physical documents were involved or not, you should talk to a local criminal defense attorney. An attorney who practices in your area will be able to tell you how your case is likely to fare based on the charges and how such cases are usually treated in court by the local prosecutors and judges. Talking to an attorney will help you understand your options and make the best possible decisions about your case.

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