Academic journal article Albany Law Review

Identity Theft Statutes: Which Will Protect Americans the Most?

Academic journal article Albany Law Review

Identity Theft Statutes: Which Will Protect Americans the Most?

Article excerpt


Imagine opening up your mail and finding a credit card statement demanding the payment of thousands of dollars for items you never bought. Or, imagine getting pulled over on a neighborhood street for traveling a couple of miles over the speed limit only to end up getting arrested, strip searched, and taken to jail due to an outstanding arrest warrant for drugs and gun charges that someone else committed in your name. Unfortunately, for too many Americans, these nightmarish scenarios have become a reality. As the crime of identity theft has swept the nation, thousands of victims have been left with damaged credit, a criminal record, and emotional distress. (1)

With the advent of the Internet, personal information travels across the globe at lightning speed. (2) Identity thieves use personal information--such as names, social security numbers, and birth dates--to commit frauds or crimes in someone else's name. As a result, state and federal governments have passed laws in an attempt to punish the perpetrators and to deter others from committing these crimes in the future. Each law is different, and each law takes a different approach to combat the problem. This Comment compares and contrasts four different identity theft statutes, and ultimately proposes an alternative statute that combines the strengths of the existing statutes. This proposed alternative statute includes additional provisions which provide more effective solutions to the identity theft problem in America.


The earliest identity theft statute adopted was in 1996 by the State of Arizona. (3) This statute made it unlawful for a person to "knowingly take[] or use[] any personal identifying information of another person, without the consent of that other person." (4) To violate the statute, the identity thief must have "the intent to obtain or use the other person's identity for any unlawful purpose or to cause loss to a person." (5) Finally, the statute states that a victim is the person "whose personal identifying information is taken or used without consent, whether or not the victim actually suffers any economic loss as a result of the offense." (6)

In codifying the identity theft statute, the Arizona Legislature sought to warn criminals of the serious nature of this offense by labeling it a Class 4 felony. (7) This classification translates into a sentence of between one-and-one-half and three years in prison for first time offenders (8) and between three and twelve years for repeat offenders. (9)

The statute's simple language and relatively short provisions address most acts that could be considered identity theft crimes. First, the term "personal identifying information" (10) is extremely broad and, although never interpreted by the courts of Arizona, could be used to include most government issued items. Second, the statute criminalizes any attempt to obtain a person's personal identifying information, whether or not the victim actually suffers economic loss. (11) This provision serves a two-fold purpose: it broadens the class of people susceptible to prosecution, and serves as a deterrent to those considering committing the crime of identity theft.

Finally, it is important to note that the statute specifically limits the class of victims of identity theft to persons whose personal identifying information was taken or used. (12) The Arizona statute does not include banks or businesses that suffer financial loss as a result of the fraudulent transaction. (13) This limitation is both a strength and a weakness. By limiting the victims of identity theft to individuals, the provision creates a private cause of action only for individuals whose personal identifying information was stolen. The status of identity theft victim, as defined by the statute, may give a person more credibility with credit-reporting agencies when attempting to clear their credit. …

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