What is Identity Theft

1
What is Identity Theft?

• The theft of identification information such as a
  name, date or birth, Social Security number, or a
  credit card number.
• The act of impersonating another, by means of
  using the person's information, such as birth
  date, Social Security number, address, name, and
  bank account information
• Occurs when someone uses your personal
  information without your permission for
  fraudulent purposes.
• Purpose is usually to gain access to another
  persons finances or frame them for a crime. Less
  commonly, it is to enable illegal immigration,
  terrorism, espionage, or changing identity
  permanently.

2
How can someone steal my identity?

• Despite your best efforts to manage the flow of
  your personal information or to keep it to
  yourself, skilled identity thieves may use a
  variety of methods to gain access to your data.
• They get information from businesses or other
  institutions by stealing records or
  information while they're on the job bribing
  an employee who has access to these records
  hacking these records conning information out
  of employees
• They may steal your mail, including bank and
  credit card statements, credit card offers, new
  checks, and tax information.
• They may rummage through your trash, the trash of
  businesses, or public trash dumps in a practice
  known as "dumpster diving.
• They may get your credit reports by abusing their
  employer's authorized access to them, or by
  posing as a landlord, employer, or someone else
  who may have a legal right to access your report.

3
How can someone steal my identity?

• They may steal your credit or debit card numbers
  by capturing the information in a data storage
  device in a practice known as "skimming." They
  may swipe your card for an actual purchase, or
  attach the device to an ATM machine where you may
  enter or swipe your card.
• They may steal your wallet or purse.
• They may complete a "change of address form" to
  divert your mail to another location.
• They may steal personal information they find in
  your home.
• They may steal personal information from you
  through email or phone by posing as legitimate
  companies and claiming that you have a problem
  with your account. This practice is known as
  "phishing" online, or pretexting by phone.

4
18 U.S.C. 1028(a)(7) The Identity Theft Statute

• In October 1998, 10 U.S.C. 1028(a)(7) was enacted
  as part of the Identity Theft and Assumption
  Deterrence Act of 1998
• This statute makes identity theft a federal crime
  with penalties up to 15 years imprisonment and a
  maximum fine of 250,000
• The Identity Theft Act expands the scope of 18
  U.S.C. 1028(a) and criminalizes the theft and
  misuse of personal identifying information, not
  just the creation, use or transfer of fraudulent
  documents

5
Prosecuting under 18 U.S.C. 1028(a)(7)

• The government must prove beyond a reasonable
  doubt that the defendant
• Knowingly transferred, possessed or used
• Transferred is defined under 18 U.S.C.
  1028(d)(10) as selecting an identification
  document and placing or directing the document on
  an online location where it is available to
  others
• A means of identification of another person
  without lawful authority,
• Means of Identification is defined under 18
  U.S.C. 1028(d)(7)(A)-(D) as name, social security
  number, date of birth, drivers license,
  government passport number, and even unique
  biometric data such as a fingerprint
• With the intent to commit, or aid and abet, any
  Federal Crime or any felony under State or local
  law, and
• That the transfer, possession or use was in or
  affected interstate or foreign commerce, or
  involved the mail. 18 U.S.C. 1028(c)(3)(A)(B)

6
18 U.S.C. 1028A Aggravated Identity Theft

• In July 2004, Congress passed the Identity Theft
  Penalty Enhancement Act (ITPEA) in response to
  the increasing frequency of identity theft scams,
  the numerous costs attributable to identity theft
  and terrorist attacks
• The Act does not change the substantive identity
  theft laws but increases penalties and creates a
  new crime of aggravated identity theft
• Definition Using a stolen identity to commit
  other crimes
• Adds a minimum sentence of two years to any
  felony punishment for crimes committed using the
  stolen personal information and a 5-year sentence
  enhancement if the stolen identity was used
  during a terrorism offense

7
Elements of 18 U.S.C. 1028A(a)(1)

• 18 U.S.C. 1028(a)(7) revisited with a special
  bonus.
• If individual knowingly transfers, possesses, or
  uses, without lawful authority, a means of
  identification of another person during and in
  relation to any felony enumerated in section
  1028A(c), two years imprisonment in addition to
  punishment provided for that underlying felony
• Felonies include 18 U.S.C. 1028 (Document and
  Identification Fraud), 1029 (Access Device
  Fraud), 1030 (Computer Fraud and Abuse), 1037
  (CAN-SPAM), 1341 (Mail Fraud), 1343 (Wire Fraud),
  1344 (Bank Fraud)

8
So, whats the difference between 18 U.S.C.
1028(a)(7)/1028A and 18 U.S.C. 1028(a)(1)-(6)
crimes?

• Example of an 18 U.S.C. 1028(a)(7) or 1028A crime
  would be stealing my identification (name, SSN,
  DOB) and applying for lots of loans and credit
  cards
• Note Even if name and social security number
  are different, it still violates 18 U.S.C.
  1028(a)(7) and 18 U.S.C. 1028A See United
  States v. Williams (355 F.3d 893) where
  defendants were convicted under 1028(a)(7) after
  applying for a loan with their own names but
  stolen social security numbers
• Example of an 18 U.S.C. 1028(a)(1)-(6) crime
  would be what was seen in United States v. Sash
  (396 F.3d 515) where Sash was convicted under
  1028(a)(1) of unlawfully producing and selling
  police badges

9
USSG 2B1.1 (2005) This guideline covers
offenses involving theft, stolen property,
property damage or destruction, fraud, forgery,
and counterfeiting (other than offenses involving
altered or counterfeit bearer obligations of the
United States).

• Base Offense Level is
• Seven (7), if the defendant was convicted of an
  offense referenced to this guideline and that
  offense of conviction has a statutory maximum
  term of imprisonment of 20 years or
• Six (6), otherwise.
• 2B1.1(a)(1), (2). Base offense level is
  increased by 2 levels if the offense involved
• the unauthorized transfer or use of any means of
  identification unlawfully to produce or obtain
  any other means of identification or
• the possession of 5 or more means of
  identification that unlawfully were produced
  from, or obtained by the use of, another means of
  identification.
• 2B1.1(b)(10)(C). If the resulting offense
  level is less than level 12, increase to level
  12. Consequently, a defendant who commits one of
  the forgoing offenses will be subject to an
  minimum offense level of 12.

10
Background of Subsection (b)(10)(c)

• Subsection (b)(10)(C) implements the directive to
  the commission in section 4 of the Identity Theft
  and Assumption Deterrence Act of 1998, Public Law
  105-318.
• This subsection focuses principally on an
  aggravated form of identity theft known as
  "affirmative identity theft" or "breeding", in
  which a defendant uses another individual's name,
  social security number, or some other form of
  identification (the "means of identification") to
  "breed" (i.e., produce or obtain) new or
  additional forms of identification.
• Because 18 U.S.C. 1028(d) broadly defines "means
  of identification", the new or additional forms
  of identification can include items such as a
  driver's license, a credit card, or a bank loan.

11
Minimum offense level justifications

• The means of identification that were bred (e.g.,
  produced or obtained) often are within the
  defendants exclusive control, making it
  difficult for the individual victim to detect
  that the victims identity has bee stolen.
• The non-monetary harm associated with identity
  theft type offenses, much of which is difficult
  or impossible to quantify (e.g., harm to the
  individuals reputation or credit rating,
  inconvenience, and other difficulties resulting
  from the offense).
• Identity theft is the fastest growing financial
  crime in America and according to the Federal
  Trade Commission, identity theft accounted for
  42 of the 204,000 complaints entered into the
  Federal Trade Commissions database in 2001.

12
Application of Subsection (b)(10)(C)(i)

• Subsection (b)(10)(C)(i) applies in a case in
  which a means of identification of an individual
  other than the defendant (or a person for whose
  conduct the defendant is accountable under 1.3
  (Relevant Conduct)) is used without that
  individual's authorization unlawfully to produce
  or obtain another means of identification.
• Examples of conduct to which subsection
  (b)(10)(C)(i) applies
• A defendant obtains an individual's name and
  social security number from a source (e.g., from
  a piece of mail taken from the individual's
  mailbox) and obtains a bank loan in that
  individual's name. In this example, the account
  number of the bank loan is the other means of
  identification that has been obtained unlawfully.
• A defendant obtains an individual's name and
  address from a source (e.g., from a diver's
  license in a stolen wallet) and applies for,
  obtains, and subsequently uses a credit card in
  that individual's name. In this example, the
  credit card is the other means of identification
  that has been obtained unlawfully.
• Examples of conduct to which subsection
  (b)(10)(C)(i) does not apply
• A defendant uses a credit card from a stolen
  wallet only to make a purchase. In such a case,
  the defendant has not used the stolen credit card
  to obtain another means of identification.
• A defendant forges another individual's signature
  to cash a stolen check. Forging another
  individual's signature is not producing another
  means of identification.

13
Application of Subsection (b)(10)(C)(i)

• United States v. Melendrez, 389 F.3d 829 (9th
  Cir. 2004)
• Defendant used six stolen Social Security numbers
  to breed other false forms of identification
• Issue presented on appeal application of the
  enhancement at sentencing
• Defendant argued that since the documents he
  manufactured did not use the real names of
  individuals to which the SSNs were assigned, his
  conduct did not fall within the confines of
  enhancement
• Ct enhancement doesnt require that individuals
  names and SSNs be used together to qualify as a
  means of identification
• Although the guideline could be stated with less
  complexity its meaning is not sufficiently
  ambiguous to invoke the rule of lenity. We
  construe ambiguities in criminal statutes in
  favor of defendants but only if the language is
  truly ambiguous.
• United States v Williams, 355 F.3d 893 (6th Cir
  2003)
• Defendants used other individuals SSNs to obtain
  a home loan in their own name
• Necessary companion federal violation social
  security fraud
• Issue presented on appeal application of the
  enhancement at sentencing
• Ct using anothers SSN to obtain a loan falls
  squarely within the enhancement

14
Rule of Lenity

• The rule of lenity is a rule of statutory
  construction which requires criminal statutes,
  when vague or ambiguous, be "strictly construed
  against the government or parties seeking to
  enforce statutory penalties and in favor of the
  persons on whom penalties are sought to be
  imposed.
• The purpose of this rule is to give proper notice
  to defendants, satisfy due process requirements,
  and reinforce the notion that it is the duty of
  the legislature--and not the judiciary--to define
  what conduct is to be considered criminal.
• Not applied in Melendrez or Williams

15
Application of Subsection (b)(10)(C)(ii)

• Subsection (b)(10)(C)(ii) applies in any case in
  which the offense involved the possession of 5 or
  more means of identification that unlawfully were
  produced or obtained, regardless of the number of
  individuals in whose name (or other identifying
  information) the means of identification were so
  produced or so obtained.
• United States v. Sash, 396 F.3d 515 (2nd Cir.
  2005)
• The conviction under 18 U.S.C.S. 1028 arose
  from defendant's production and sale of
  counterfeit New York City Police Department
  badges.
• Defendant challenged the two-level sentencing
  enhancement
• Defendant argued that portions of the background
  commentary to 2B1.1 suggested that identity
  theft must be an element of the crime of
  conviction in order to apply the
  2B1.1(b)(9)(C)(ii) enhancement.
• Court concluded that it did not need to resort to
  background information interpretations because
  the language of 2B1.1(b)(9)(C)(ii) was plain.

16
How Can Identity Theft Be Prevented?

• When in Public, Exercise Caution When Providing
  Identity Information
• Do Not Carry Unnecessary Identity Information in
  a Purse or Wallet
• Secure Your Mailbox
• Shred Non-Essential Material Containing Identity
  Information
• "Sanitize" the Contents of Garbage and Recycling
• Remove Your Name from Mailing Lists

17
How Can On-line Identity Theft Be Prevented?

• Secure Information on Your Personal Computer
• Similar to telephonic inquiries, credit card
  numbers should not be provided to anyone on the
  Internet unless the consumer has initiated the
  contact and is familiar with whom they are doing
  business.
• install a firewall on their personal computers to
  prevent unauthorized access to stored
  information.
• This is especially true for digital subscriber
  line (DSL), cable modem, or other "always-on"
  connections.