Identity theft involves using another person's personal identifying information to commit fraud. This could include using another person's credit cards, getting a loan in someone else's name, claiming benefits under another person, or other types of fraud. Identity theft is an increasingly common offense in the East Bay and across the country. Penalties for identity theft can include years in prison and thousands of dollars in fines.
Identity Theft in California
Identity theft is a crime under California Penal Code 530.5. The elements of identity theft include:
- Every person who willfully obtains;
- Personal identifying information of another person; and
- Uses that information for any unlawful purpose;
- Without the consent of that person is guilty of identity theft.
A conviction for identity theft under PC 530.5 is punishable by a fine, imprisonment, or both. The prison sentence for identity theft depends on the defendant's criminal record and the type of identity theft involved.
What is “Personal Identifying Information”?
Personal information may be used to obtain goods, services, or credit in another person's name. This personal information can also be used to verify another person's identity over the phone or online. Under California Penal Code 530.55, “personal identifying information” includes any:
- Telephone number
- Health insurance number
- Taxpayer identification number
- School identification number
- Driver's license
- Social security number
- Employee identification number
- Mother's maiden name
- Savings account number
- PIN (personal identification number) or password
- Date of birth
- Unique biometric data (fingerprint, facial scan identifiers, voiceprint, or retina image)
- Information contained in a birth or death certificate
- Credit card number
What are unlawful purposes for using another's information?
Identity theft involves using another's personal identifying information for any unlawful purpose. This includes using the information to obtain, or attempt to obtain:
- Real property
- Medical information
Identity theft commonly involves online transactions. An individual may obtain someone else's identifying information through hacking their computer, using a phishing scam, or otherwise tricking someone into providing credit card details or their username and password to an online account. This information can then be used to make online purchases for goods or services. This information can also be sold or traded for others to use.
In some situations, an individual may possess and use another person's information for a lawful purpose. For example, an individual may use their parent's credit card number with consent to help them order a product online. However, using this information without consent may be a criminal offense.
Federal Identity Theft Charges
Identity theft can also be a federal crime. Under 18 U.S.C. § 1028, it is a federal offense to knowingly transfer, possess, or use a means of identification of another person without lawful authority, with the intent to commit any unlawful activity that constitutes a violation of federal law.
Even if an individual does not leave the state when committing identity theft, it can be charged as a federal crime if it involves interstate commerce, banking systems, or the internet. Since most identity theft involves computers, credit cards, phones, or banks, identity theft could be charged as a federal or state crime.
The penalties for a federal identity theft conviction may include fines and up to 15 years in a federal penitentiary.
Defenses to Identity Theft Charges
There may be a number of available defenses for someone facing identity theft charges. Your attorney will investigate your case and identify the best possible defenses in your situation. Possible defenses include:
- Mistaken identity
- You were using a publicly accessible computer
- You did not intentionally gather personal identifying information
- You did not gather personal information for an unlawful purpose
Additionally, if the police searched your home or computer without proper authority, that evidence may be suppressed as part of a court motion. Generally, evidence gathered in violation of an individual's rights against illegal search or seizure cannot be used against the defendant in court.
Defense for Software Providers
There is a specific defense in the statute for software providers. In general, an interactive computer service or access software provider is not liable for identity theft. There may be computer programs or services that collect personal information or distribute this information for a lawful purpose. This would generally not be considered identity theft under California law.
However, software or service providers may be guilty of identity theft if they acquire, transfer, sell, convey, or retain possession of personal information with the intent to defraud.
Penalties for Identity Theft Crimes
The penalties for identity theft crimes will depend on a number of factors, including:
- Extent of the fraud
- Number of victims involved
- Value of identity theft fraud
- Defendant's criminal history
Identity theft may be charged as a misdemeanor or a felony. As a misdemeanor, a conviction could result in up to one year in jail and a fine of up to $1,000.
As a felony, a conviction for identity theft could result in up to three (3) years in prison and a fine of up to $10,000. In addition, the defendant may be liable for restitution to the victims of identity theft. After serving jail time, a defendant may have to serve parole, subject to conditions of the parole officer.
Even after serving the criminal sentence, a felony may make it more difficult to find a job, and it may prohibit individuals from certain professions, including enlisting in the military. A felon may also be prohibited from owning or possessing a firearm in California.
East Bay Criminal Defense Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing misdemeanor and felony identity theft charges in the East Bay. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick today.