Identity theft is committed when someone fraudulently uses, attempts to use, or conspires to use the identification information of another person without their authority, usually for financial gain.
Identity theft was committed long before computers existed. In the late 1800s, for example, a person could steal money by signing a bank draft fraudulently using the name of the person who owned the account. Before everyone needed a picture ID, pretending to be someone else was easy.
The use of computers has made some methods of impersonating others more difficult, but people have devised ways to defeat the safeguards designed to stop identity thieves. New methods of identity theft include stealing passwords, cloning credit or debit cards, tricking people into disclosing their social security numbers through misleading emails and phone calls, and using online claim forms to obtain government benefits or a tax refund payment in someone else’s name.
What Is Considered Identity Theft Under Federal and Florida Law?
Criminal identity theft charges can result from a wide range of activities, even some that you might not realize are illegal.
Federal Identity Theft
The U.S. Department of Justice describes identity theft as “wrongfully obtain[ing] and us[ing] another person’s personal data in some way that involves fraud or deception, typically for economic gain.”i But there are specific facts that the government prosecutors must prove before they can convict someone facing identity theft charges.
Congress enacted a federal criminal statute to enable federal prosecution of people who commit identity theft called the Identity Theft and Assumption Deterrence Act of 1988. Under this law, the government has to prove beyond a reasonable doubt that the defendant
knowingly transfer[ed], [used or possessed] without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.” 18 U.S.C. § 1028(a)(7)
Federal Identity Fraud Penalties
Under federal law, an identity theft conviction brings an added sentence to the underlying penalty imposed for the fraud crime the defendant was convicted of committing or attempting. Note that a federal prosecution can be based on the violation of federal or state laws.
- Penalty Added to Underlying Crime Sentence: Conviction under the federal identity theft statute requires the court to impose an additional 2 years on top of the sentence imposed for the underlying criminal conviction, typically a bank fraud, insurance fraud, or a similar offense.
- Producing or Possessing Fake ID Equipment: If someone is convicted of federal identity theft involving making or transferring identification documents or a counterfeit ID or possessing equipment to produce documents, or fraudulently obtaining money or goods valued up to $1,000, the penalty is up to 15 years in federal prison, plus huge fines.
- Related to Drug Trafficking: If the federal identity theft conviction involved drug trafficking, or a violent crime, or the defendant has a prior identity theft conviction, then the person can be sentenced to federal prison for up to 20 years.
- Domestic or International Terrorism: If the federal identity theft involved either domestic or international terrorism, aiding terrorism, like using someone else’s or a fake ID to buy bomb-making materials, then the sentence can be up to 30 years in federal prison.
Learn More> Minimum Sentencing for Aggravated Identity Theft
Federal vs. State of Florida Prosecution
Identity theft is a crime under both federal and Florida state law. Although the crime can be prosecuted in either venue, the federal government generally prosecutes larger identity theft schemes involving interstate conspiracies. However, identity theft charges can be included in a complex, multicount federal fraud indictment.
When identity theft occurs within Florida’s jurisdiction, the state can prosecute under Florida’s Fraudulent Practices law F.S. § 817.568 Criminal use of personal identification information.
Florida Identity Theft Law
Under Florida law, it is a criminal offense to “fraudulently use, or possess with intent to fraudulently use” the personally identifiable information of a person without first obtaining that person’s consent.
The crime is a 3rd-degree felony carrying up to 5 years in prison and a fine of up to $5,000 unless there are aggravating circumstances. Depending on the value of the money, goods, or services, or the benefit sought to be obtained, penalties can be much higher:
- Higher penalties are imposed in these circumstances
- Minimum 3 years up to 15 years in prison and $10,000 fine if over $5,000 or involving more than 10 but less than 20 identities (2nd-degree felony),
- Minimum 5 years in prison up to 30 years in prison and $10,000 fine if over $50,000 or involving more than 20 but less than 30 persons’ identities (1st-degree felony),
- Minimum 10 years in prison up to 30 years in prison and a $10,000 fine if over $100,000 or involving more than 30 persons’ identities (1st-degree felony),
- Up to 1 year in jail if identification information is possessed or used with intent to harass a person (1st-degree misdemeanor), or
- Up to 5 years in prison if a public record is used in the commission of identity theft for harassment (3rd-degree felony)
There are additional circumstances in which identity theft is treated with special or enhanced penalties, such as the use of a deceased person’s identity information, counterfeiting an identification, or involving a law enforcement identity.
Learn More > Florida Identity Theft Charges and Penalties
Florida Identity Theft Defenses
Experienced criminal defense lawyers know how to defend both federal and state identity theft charges. The prosecution’s burden of proof requires them to prove “every” part of the crime beyond a reasonable doubt.
A skilled identity theft defense attorney will seek to attack the government’s proof by challenging the evidence with the following defenses:
- No Fraudulent Intent — the defendant was mistaken or used another person’s identity unintentionally, or thought they did have consent,
- Consent — the defendant believed they had the person’s consent, especially if the person had previously consented to the defendant’s use of their identity information,
- Insufficient Evidence Defendant Committed the Act – the identity of the perpetrator must be proven beyond a reasonable doubt, as between multiple suspects,
- Insufficient Proof of Possession — when evidence of the offense is located where persons other than the defendant had equal or free access, proof of the defendant’s specific knowledge dominion, and control required.
Florida Criminal Defense
If you have been charged with identity theft, call our experienced identity theft attorneys at Stechschulte Nell at 813-280-1244 for a case review. We are on your side.