The Crime of Identity Theft

Identity theft crimes punish offenders whether or not a victim suffers a financial or other loss.

By , J.D.
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Updated February 03, 2023

Identity theft occurs when someone uses another's personal information without consent and for an unlawful purpose. It's a crime that nearly a third of U.S. citizens have experienced in their lifetime. The amount of money lost to identity theft measures in the billions of dollars every year.

All states criminalize identity theft, and many increase penalties when identity theft targets vulnerable individuals, such as the elderly or people under guardianship.

What Is Identity Theft?

A person commits identity theft by obtaining or possessing another's personal identifying information without their consent and with the intent of using the information for a fraudulent or unlawful purpose. The purpose of identity theft laws typically focuses on punishing the unlawful use of another's identity, rather than the resulting harm if any. However, the more harm the thief causes, the stiffer the penalties can be.

Personal Identifying Information

Though state definitions differ slightly, personal identifying information generally includes names, dates of birth, credit card numbers, Social Security numbers, financial records, credit report data, state identification or driver's license numbers, passport numbers, insurance cards, telephone numbers, account numbers, addresses, names of relatives, photographs, biometric data, and anything else one can use to identify oneself.

Unlawful or Fraudulent Purposes

The intended unlawful or fraudulent purpose could be any number of things from setting up or accessing accounts to steal money or property to posing as that person to get a job or loan. An identity thief might use someone's personal information to apply for a credit card, set up a wireless device plan, get medical care, steal a tax refund, order items online, or get a job.

For a conviction, the thief doesn't need to succeed in the unlawful purpose. It's the intent that counts in identity theft cases. Let's say a customer gives a waiter a credit card to pay the bill. If the waiter writes down or scans the credit card number intending to use it later to purchase something, the waiter has committed identity theft even if they never actually buy anything.

Types of Identity Theft

Identity theft laws cover a wide range of behaviors. Some scholars divide identity theft crimes into categories, such as new account fraud, unauthorized account use, criminal identity theft, government fraud, employment or tax fraud, and medical fraud.

Some examples of identity theft include:

  • Someone steals your wallet or purse to obtain your personal information and credit cards.
  • A stranger sees you drop your credit card and decides to pick it up and use it to buy something.
  • Someone steals your driver's license and gives it to a police officer when pulled over for a speeding ticket or when being arrested.
  • Someone takes your state identification and poses as you to get a job.
  • Someone uses a computer to access your email account and find personal identifying information in your emails.
  • Someone steals your mail or goes through your garbage looking for bills or statements that contain your personal information and account numbers.

Is Identity Theft a Felony?

Like all criminal laws, identity theft laws differ from state to state, and there are also federal laws that have their own penalties. Being convicted of an identity theft crime can lead to misdemeanor or felony charges.

Penalties for Identity Theft

Some states treat identity theft laws like other theft laws and impose increasing penalties based on the monetary loss suffered by the victim. For instance, the defendant might be convicted of a misdemeanor if the losses were under $500 and face increasing felony penalties for losses above $500. Many states impose harsher penalties if the defendant targeted a vulnerable victim, such as a child, an elderly person, or someone with a mental or physical impairment, or if the defendant targeted numerous victims or deceased victims.

The type of identity theft might also dictate the penalty. For instance, identity theft aimed at stealing public funds or prescription drugs might carry felony penalties. If the thief sells someone's identifying information to another party, this could lead to felony charges as well.

Can You Go to Jail for Identity Theft?

A conviction for an identity theft crime can result in time spent in jail or prison. In general, a conviction for a misdemeanor offense can lead to up to a year in jail, while felony sentences can result in several years or more in prison.

Whether someone will spend time behind bars depends a lot on the offense, the victim, and the defendant's criminal history. A repeat offender who stole tens of thousands of dollars from elderly victims will likely see plenty of time behind bars. But a judge might allow probation for a first-time offender who agrees to pay restitution, attend counseling, and follow other conditions ordered by the judge.

Fines and Restitution in Identity Theft Cases

It's common for courts to order someone convicted of identity theft to pay a fine. Misdemeanor fines can sometimes reach in excess of $1,000, while felony fines can easily exceed $5,000.

If the identity theft results in a victim losing money or suffering financial harm, courts will also typically order the defendant to pay restitution to the victim. Restitution is designed to compensate the victim for his or her loss, while fines are designed to penalize the perpetrator. Because it can take an identity theft victim significant time and effort to recover from identity theft (repair credit reports, shut down accounts), some states require defendants to pay a minimum amount in restitution even if the victim suffered no direct financial loss.

Defenses to Identity Theft Charges

Defenses to identity theft charges will depend highly on the facts of the case. The defendant might assert that the prosecution got the wrong person and someone else is the thief. Or a defense attorney might try to poke holes in the prosecutor's case by arguing there's no proof the defendant intended to use the information for an unlawful purpose. In some states, the victim's consent to use their information is a defense against identity theft (although other charges could likely be filed).

Talk to a Lawyer

Being charged with an identity theft crime is a very serious situation. Depending on your circumstances, being convicted of identity theft can lead to large fines and years or more in prison. Talk to a criminal defense attorney if you are being investigated for, or charged with, an identity theft crime. A lawyer can protect your rights throughout the criminal legal process.

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