Academic journal article Texas Review of Law & Politics

Identity Burglary

Academic journal article Texas Review of Law & Politics

Identity Burglary

Article excerpt

I. Introduction

The growing prevalence of identity theft has inspired some academics to label the trend "an epidemic,"1 and "a national crisis," prompting every U.S. jurisdiction to respond by statutorily criminalizing identity theft.3 However, notwithstanding its relative frequency,4 identity theft as a crime is a relatively nascent development in criminal law.5 And, due in large part to technological advance, identity theft as an act has experienced a significant evolution in terms of both scope and complexity. Thus, the methods and manifestations of identity theft are ever increasing in their diversity. However, while every U.S. jurisdiction statutorily describes the elements of identity theft and classifies identity theft within that jurisdiction's penal code,6 diese statutes largely fail to recognize the circumstantial diversity between incidents of identity theft.

Against this "one-size-fits-all" classification of identity theft crimes, we argue in favor of statutory schemes which include a greater differentiation between crimes of identity theft, recognizing that all identity crimes are equal in neither their execution nor in the culpability of their perpetrators. This differentiation between theft crimes would also allow the conceptualization of identity theft in a more complete way, and could only serve to further traditionally articulated consequentialist, retributivist, due process, and expressivist objectives of criminal law. However, this differentiation between identity crimes does not require the creation of a novel comparative framework by which to identify particular crimes. Rather, it is sufficient that this differentiation broadly follow accepted classifications of traditional theft crimes,7 mimicking the differentiation between crimes such as robbery, burglary, larceny, and embezzlement.

In Part II, we will describe what we see as the most significant shortcomings of identity theft statutes typically employed in U.S. jurisdictions. In Part III, we will briefly articulate a familiar model of theft crime classification which could be effectively used to distinguish theft crimes from one another. In Part IV, we will demonstrate the appropriate application of that traditional framework in the non-traditional context of identity crimes. In Part V, we will describe the consequences that this reconceptualization of identity theft crime classification will have in furthering traditionally stated goals of consequentialist, retributivist, due process, and expressivist interests.

II. THE GLARING INADEQUACIES OF MODERN IDENTITY THEFT STATUTES

Consider the following examples of state statutes criminalizing identity theft: Under Alabama law, a person commits identity theft "if, without the authorization, consent, or permission of the victim, and with the intent to defraud for his or her own benefit, [the person] obtains, records, or accesses identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of the victim."8

In California, an identity theft occurs when a person "willfully obtains personal identifying information ... of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person ...."9

In Texas, an identity thief is one who, "with intent to harm or defraud another, obtains, possesses, transfers, or uses identifying information of [] another person without the other person's consent."10

These three statutes are representative of identity theft statutes as they are currently embodied in U.S. jurisdictions. Perhaps the most striking feature common to these and the vast majority of statutory schemes criminalizing identity theft is a lack of differentiation between different types of identity theft crimes.11 That is, identity theft statutes typically fail to differentiate between identity theft crimes committed in varying manners or under varying circumstances. …

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