In cases of alleged identity fraud, the government is not lenient. Identity fraud is a criminal felony with penalties that can include up to 30 years in federal prison and tens of thousands of dollars in fines. If you or someone you know has been accused of identity fraud, you can contact an experienced identity theft defense lawyer right away. Your lawyer will go over the details of your case with you, advise you on the appropriate course of action, and start working on your defense.

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Find a Criminal Law Attorney for Identity Theft Charges

What is Identity Theft and How Does It Happen?

Since 1998, when Congress passed the Identity Fraud and Assumption Deterrence Act, identity theft has been legally classified as a federal crime (ITADA). "Knowingly move or use, without lawful authority, a means of identification of another person with the intent to conduct, or to help or abet, any illegal behavior that is a violation of federal law, or that is a felony under any applicable state or local law," according to the ITADA.

Prior to the passage of this act, offenses that are now classified as identity fraud were prosecuted under "false personation" laws. The ITADA strengthened the laws against fraudulent activity involving identification documents or taking another person's identity in response to the rise in identity theft crimes and raised the criminal penalties for those convicted of identity theft.

Furthermore, the ITADA closed a major legal loophole; previously, it was only a criminal offense to illegally use another person's information; now, it is illegal to unlawfully access another person's information, whether for financial gain or to conduct further criminal activity.

Identity theft typically entails the theft of:

A birth or death certificate's information
Data about your bank account
Data about your credit card
Data about a student's or an employee's ID
Data from a driver's license or a passport
If it's a tax ID or a social security number

An individual's name, date of birth, address, or phone number

The following are some of the most common methods used by identity thieves to acquire such information:

Obtaining data from computers by hacking or using malware
Skimming is the act of obtaining credit card details from business receipts, credit card readers, or RIFD readers.
Taking wallets or purses is a common crime.
Dumpster diving for paperwork, mail, or receipts that have been discarded
Phishing is the practice of sending bogus or "spam" e-mails to people in order to obtain personal information from them.
Scams on the phone
Theft of mail
In public eavesdropping

Here are some basic examples of identity fraud methods:

Getting welfare in someone else's name
Forgery of a check signature
Using someone else's name or birth date in order to commit a crime in secret.
Using another person's details to apply for a mortgage or loan
Using another person's credit card to make purchases online or in shops.

If you are charged with federal identity fraud, you could face up to 15 years in jail and incredibly high penalties. The 2004 Identity Theft Penalty Enhancement Act (ITPEA) added new provisions for "aggravated" identity theft. Suppose you use another person's identity to commit criminal acts such as theft of Social Security benefits, visa violations, or acts of domestic terrorism. In that case, you are guilty of "aggravated" identity theft, according to the ITPEA. If you are accused of "aggravated" identity fraud, you could face an extra two to five years in jail.

Identity theft and fraud have become more complicated as a result of recent developments such as technology and the storage of information online. A variety of federal laws have been enacted to resolve these increasing complexities. These regulations contain the following:

The Fair and Accurate Credit Transactions Act of 2003, which requires creditors and financial institutions to follow certain rules and regulations in order to ensure that credit reports are accurate and private.
The Fair Debt Collection Practices Act prohibits debt collectors from using misleading tactics to collect on past-due bills.
The Identity Fraud Enforcement and Restitution Act of 2008 stipulate that restitution orders for identity theft which contain a sum equivalent to the time spent by the victim repairing any harm caused by the theft. This legislation also requires federal courts to prosecute the crime regardless of whether the suspect and victim are from the same state; previously, federal courts could only prosecute if the criminal and victim were from different states.

A more extensive explanation can be relayed to you by your criminal defense attorney. They will be able to answer more questions as your case pushes through.

California Statutes

Identity theft is described by California Penal Code Section 530.5 as obtaining and holding the personal identification details of another person with the intent to defraud them. Identity theft is closely related to (but different from) forgery since data is commonly found on credit cards, checks, and important documents.

Identity fraud is classified into four categories by statute 530.5:

Unauthorized use of another person's personal information is covered in subsection a.
Section b deals with the illegal/fraudulent possession of another person's personal details.
Section c is concerned with the illegal sale and/or transfer (including electronically) of other people's personal identification details.
Subsection d includes the same selling/transfers as subsection c, but adds the aspect of planning to use the property for an unauthorized purpose.

Identity Theft in California: What You Need to Know

Identity theft is illegal under both state and federal laws. An individual is guilty of identity fraud under California Penal Code 530.5 if he or she knowingly obtains personal identifying information and uses it without the permission of the person whose information is used. It is not necessary for the intent of using the information to be unlawful, but if it is, further criminal charges will be brought. Furthermore, falsely impersonating another person in order to gain money or property is illegal under California Penal Code 530.

In California, identity theft is classified as a "wobbler" offense, meaning it can be charged as a misdemeanor (with a maximum sentence of one year in prison) or a felony (with a maximum sentence of five years in prison) (which carries a sentence of more than a year in prison). When the district attorney files the charges against the defendant, he or she usually decides whether to charge the defendant with a crime or a felony. A judge may decide to amend this later, or the defendant's counsel may seek a lower degree of crime as part of a plea deal.

In addition to the possibility of longer-term imprisonment, a criminal conviction has other consequences, such as:

A defendant's gun carries permit is revoked.
Probation is more involved and costly.
A professional license may be revoked.

What Does the DOJ Do With Identity Theft and Fraud?

The Department of Justice uses a number of federal laws to prosecute cases of identity theft and fraud. The Identity Theft and Assumption Deterrence Act, for example, was signed into law in the fall of 1998. This law introduced a new crime of identity theft, which forbids "knowingly transmitting or using, without lawful authority, a means of identification of another person with the intent to commit, or to help or abet, any illegal conduct that violates Federal law, or that violates any applicable State or local law." Section 1028(a) of the United States Code (7). In most cases, this crime is punishable by a maximum sentence of 15 years in jail, a fine, and the criminal forfeiture of any personal property used or intended to be used in the commission of the offense.

Identification fraud (18 USC 1028), credit card fraud (18 USC 1029), computer fraud (18 USC 1030), postal fraud (18 USC 1341), wire fraud (18 USC 1343), and financial institution fraud (18 USC 1344) are some of the other laws that could be used in identity theft or fraud schemes. Any of these federal crimes is a felony punishable by up to 30 years in jail, fines, and criminal forfeiture, in some instances.

To prosecute identity theft and fraud cases, federal prosecutors collaborate with federal investigative agencies such as the Federal Bureau of Investigation, the US Secret Service, and the US Postal Inspection Service.

Penalties that could be imposed

Identity theft can be prosecuted as a misdemeanor or a felony in California, depending on the facts of the case and the defendant's criminal history.
When convicted as a misdemeanor, identity theft carries a maximum penalty of one year in prison and a fine.
Identity fraud is a crime punishable by 16 months to 3 years in state prison and a fine.
In all cases, victims must receive full compensation, and those convicted of identity fraud often lose their current jobs, particularly if they handle confidential information. Probation/parole could be available instead of jail/prison time in some cases.

In addition, if you are ever charged with a federal crime of identity fraud, you could face hefty fines and up to 30 years in federal jail, in addition to any penalties imposed by the California Penal Code.

Finally, keep in mind that each act of identity theft and each object stolen is treated as a separate offense, so "complete penalties" often result in exorbitant fines and lengthy jail terms.

What Comprises the Crime

The prosecutor must prove the following elements beyond a reasonable doubt to obtain a conviction on charges of identity theft:

The defendant did, in fact, have access to or possession of another person's personal details. This may include information such as a person's name, address, social security number, date and place of birth, mother's maiden name, PIN number, login ID and password, account number, card number, employee ID, tax ID, driver's license number, and a variety of other items.
The defendant "willfully" accessed the personal details. This does not necessitate any nefarious intent or taking action to obtain the knowledge. It just has to do with the willing acceptance of personal information as it is presented.
Personal information was collected and kept in an unauthorized manner. Those with permission to view personal details are immune from prosecution as long as they do not store or misuse them.

What Are the Different Types of Identity Theft?

California Penal Code 530.5 PC, as well as other statutes, cover a variety of forms of identity fraud:

Credit card fraud is when you obtain someone else's credit card details in order to use it fraudulently, whether or not you use it yourself.
Misrepresenting yourself to receive jobs or tax benefits by using someone else's social security number or other personal information.
Phone and service fraud is when someone uses someone else's social security number or personal information to open a phone line or a utility account.
Bank fraud is the fraudulent or unauthorized access to another person's bank account or the opening of a new account in their name.
Loan or lease fraud is when someone obtains a loan or lease using someone else's social security number or personal details.
Government benefit fraud is when you impersonate someone else and use their social security number or personal details to receive government benefits, pensions, social security, or some other type of government assistance.
Criminal identity fraud is a form of identity fraud in which you pretend to be someone else in order to escape criminal prosecution.

Convictions for felonies can also result in increased fines.

At the federal level, 18 USCA 1028 makes it illegal to intentionally and without lawful authority produce a false identity document. The law also makes it illegal to know to transfer an identification document that was made without lawful permission, as well as a variety of other activities involving the possession, processing, transfer, or trafficking of other people's identification documents. A breach of Section 1028 is a crime punishable by up to five years in prison for certain acts and up to 30 years in prison for more serious offenses, such as identity fraud used to promote domestic or foreign terrorism.

Managing the Legal Minefields on Your Own

Regardless of the laws in effect, you can need the help of a criminal defense attorney to get companies to comply with your requests for identity fraud assistance. For example, a company like PayPal may be able to close a fraudulently opened account in your name, but it may be more difficult to persuade PayPal to assist in the investigation of the fraudster. When faced with difficult requests for confidential information, many large corporations will decide that it is better to do nothing before lawyers are involved.

Many states have established a legal process for victims of identity fraud to follow. Food stamp offices, the Social Security Administration, the FBI, the Department of Homeland Security, and the Internal Revenue Service will all have to deal with "red tape." These steps can all be completed without a criminal defense lawyer's assistance, but this does not imply that they will be easy.

Identity Theft Defenses

The most important thing you will do to mitigate your identity fraud claims' negative effects is to hire a criminal defense attorney as soon as possible. There is no need to wait to seek legal advice; a criminal defense attorney will act as your advocate and protect your rights even though your case is still in its early stages. Your attorney will explore the choices open to you at every point of your case and proceed in accordance with your wishes.

There are a variety of defensive tactics that can be used depending on the specifics of your situation. If you meet the following criteria, your identity fraud charges will be dismissed:

THERE IS NO INTENT TO DEFRAUD

You didn't have an illicit motive – the prosecutor must be able to show that you unlawfully accessed another person's information with the intent to aid conduct that is illegal under federal or state law. You cannot be accused of identity fraud if you can show that you have no criminal intent.

NO ILLEGAL ACTIVITIES WERE CONDUCTED.

If nothing illegal happened when you had the records, the prosecutor would have a tough, if not impossible, time proving that a crime occurred.

You must exercise caution when relying on this protection, since even signing up for a Netflix service, as in the above example, needs only the individual using the service to provide their own personal information, rather than relying on an intermediary.

NO WILLFUL ACTION WAS PERFORMED.

Protection based on a lack of willful intent to steal someone's identity may be proposed by your California criminal defense attorney. For example, you didn't technically steal something if you didn't steal someone's personal information on purpose (i.e., you just saw their password lying around). You did not illegally obtain or use another person's personal information – You are not guilty of identity fraud if you did not unlawfully obtain or use another person's personal information. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

FALSELY ACCUSED

The case against you isn't strong enough. The lack of hard evidence against you can be a huge help. When there is video evidence purporting to show you buying goods with a stolen credit card, your criminal defense attorney can still question the accuracy of the videos and the prosecution's conclusions.

Offenses That Are Related

An identity theft charge is almost always followed by one or more other offenses, each of which carries additional penalties. The following are a few of the most common:

Credit card fraud refers to the illegal possession and use of credit cards, debit cards, and account details.
Forgery of a check, forging a signature, or modifying an existing check are all examples of check fraud.
False impersonation refers to posing as someone else in order to receive a gain fraudulently. This can happen both online and in person.
When stolen information is used to fraudulently obtain claim money, it is known as welfare, unemployment, or insurance fraud.
Falsification of a driver's license, license plate, handicapped parking permit, and other papers.
If the value of stolen personal information reaches $950, it is considered grand theft.
Senior fraud occurs when people over the age of 65 are defrauded, and their identities are stolen.

Identity Theft on the Internet

These days, online identity fraud and internet crimes, in general, are a hot topic in the press. Online identity fraud prosecutions are becoming more common as a result of the vast number of unsophisticated victims and the various online vulnerabilities that can be exploited. However, these prosecutions may often be the result of a simple misunderstanding. If you've been charged with online identity fraud, you'll need to find an experienced criminal defense attorney who can clarify the allegations and help you weigh your options.

California Statute on Online Identity Theft

Online identity fraud is only one form of identity theft, which is specified by California Penal Code 530.5. If you knowingly collect personally identifying information about another person for some unlawful reason, such as obtaining or attempting to obtain credit, products, services, real property, or medical information without that person's permission, you are guilty of identity theft.

The code goes on to say that certain types of behavior are prohibited, including:

Obtaining another's confidential identification details without their permission in order to commit an illegal act
Obtaining another person's personal information without their permission in order to commit fraud
providing, exchanging, or selling another's personal identifying details for the purpose of committing a fraudulent act
Providing, sharing, or selling another person's personal identifying information with the knowledge that it would be used to commit fraud

Unauthorized use of another person's e-mail is another example, as is intercepting and using another person's personal identifying information online. Online identity theft refers to any form of identity theft that occurs by the use of the internet.

Online Identity Theft Penalties

In California, an online identity theft charge is referred to as a "wobbler." A wobbler is a charge that may be handled as either a misdemeanor or a felony, depending on the prosecutor's discretion. When deciding your case's status, a defense lawyer will look at the evidence surrounding your conviction and your criminal background. Wobblers are a type of case in which an experienced criminal defense attorney can save you a lot of money. A criminal defense attorney could be able to negotiate a wobbler from a felony to a misdemeanor, lowering the potential penalty you may face significantly.

If you are found guilty of misdemeanor online identity fraud, you could face a one-year prison term. You will also be subject to a fine. If you are convicted of felony online identity fraud, you may face a sentence in a California state prison of 16 months, two years, or three years. In addition, you may be fined.

Identity Theft Legal Defense Strategies

There are many defenses that can relate to your case, and an experienced criminal defense attorney in Los Angeles County will weigh all options while evaluating your case. To prove identity fraud, the prosecutor must prove many elements, and if the prosecutor fails to prove even one, you will be acquitted. The majority of these defenses concentrate on a single aspect of the crime of online identity theft.

Fraudulent intent Wasn't Found

Identity theft is an intentional felony, which means you have to try to commit fraud in order to be accused of it. It is not illegal to simply possess another person's personal information. In fact, obtaining the information without their permission is not a crime as long as it is not with the intent to use it fraudulently.

No Illegal Purpose

You haven't committed a crime if you have the personal information of another person and have no intention of using it unlawfully, just as you haven't committed a crime if you don't have the desire to use it unlawfully. That is, even though you obtain personal data without permission and have no intention of using it unlawfully, you may have legitimate protection.

Permission to use

Another situation in which you can possess another person's personal identifying details without committing a crime is when you do so with their permission. You haven't committed a crime if that individual agreed to you have the details.

Law Enforcement Has Infringed on People's Rights

And suppose the prosecution is able to provide proof that meets the criteria for online identity fraud. In that case, you have a strong defense if the lawyer can show that all of the evidence against you was obtained illegally. Law enforcement officers cannot easily stop your car or search your home at will. In most cases, a warrant is required for a search, which involves looking through your computer for information linking you to the suspected fraud. If the cops unlawfully seize your property or search your house, your identity theft lawyer will be able to get the evidence seized removed from your trial.

If You're a Victim, Here's What You Can Do

Put a credit freeze, a fraud warning, or a credit lock on your file.

A credit freeze, fraud warning, or credit lock are three choices for securing your credit file (including your credit report and related credit score).

Credit Freeze

A credit freeze prevents the credit records from being released to a third party by a credit monitoring firm such as Equifax, Experian, or TransUnion. Creditors will only be able to access your account if you unfreeze it for a particular time period or for a specific business or entity after it has been frozen. As a result, a freeze prohibits lenders from extending new credit to you based on the information in your file. A credit freeze lasts indefinitely, but it can expire after seven years in some states.

To freeze your file with the three major credit reporting agencies, you must first initiate a freeze with each agency, and depending on your state's laws, and you will have to pay a small fee. However, as of September 21, 2018, anyone, regardless of where they live, is free to place and remove a credit freeze. (Read What Is a Credit Freeze and When Should I Use One? for more information on credit freezes, including how to set one up.)

Fraud Warnings

When you put a fraud warning on your credit file with one of the three major credit bureaus, the creditor is required to take additional measures to verify the identity of the individual seeking credit before continuing with the transaction. Your fraud notice will be automatically applied to the other two companies after you submit one at one of the three bureaus.

The following are the various forms of fraud alerts:

The first alert. Even if you only suspect that you may be a victim, you can request an initial warning. This notification will be kept in your register for 90 days. (Beginning September 21, 2018, an initial one-year warning will be in effect under federal law.) A business must check your identity before granting credit if there is a warning on your register. When you place this type of warning, each bureau will send you one free copy of your credit report.
The warning has been extended. If you've been the victim of identity fraud, you can file an Identity Theft Report with the credit bureau and ask for an extended notice to be placed on your file. (If you report identity fraud to the FTC, you will get an Identity Theft Report.) A creditor cannot award new credit in your name after an extended fraud warning has been placed unless it first takes appropriate measures to confirm your identity by contacting you directly at the phone number you have given or by another reasonable method you've mentioned. The extended notice will last for seven years, and you will be able to obtain two free copies of your credit report from each bureau for the next year. Furthermore, each bureau must exempt you from lists prepared for creditors or insurers with offers of credit or insurance that you did not seek for a period of five years (so-called "prescreened offers").
On the lookout for active service. You can add an active duty warning to your file if you're currently serving in the military. This warning is identical to the others, except it lasts for a year, the exclusion from prescreened lists is for two years, and you are not eligible for a free credit report. (As of May 24, 2019, the Fair Credit Reporting Act provides military veterans with additional credit reporting rights on some medical debts.) See Laws That Help Protect Military Veterans' Credit for more information.)

A fraud warning is less effective than a credit freeze in terms of preventing identity theft. You can use both a freeze and an alarm at the same time, but if you have to choose between the two, the freeze is usually the better option. (Learn the difference between a fraud warning and a credit freeze.)

1. Put a Credit Lock

A credit lock, which is close to a credit freeze, is another choice to consider. However, credit lock services are typically charged on a monthly basis. Credit freezes are also governed by state and federal laws. In contrast, credit locks are regulated by a contract between you and the credit bureau. You'll be better protected under state and federal law than you would be under a credit bureau contract. As a result, a credit freeze is a safer choice once more. (Learn how to distinguish between a credit freeze and a credit lock.)

2. Take a look at your credit reports.

You can request copies of your credit report from each of the three credit bureaus. Examine all potential red flags, including accounts you didn't open, investigations you didn't initiate, and defaults and delinquencies you didn't trigger. Also, double-check your identifying details. Check that all of your personal information is right, including your name, address, and Social Security number, and that no fraudulent accounts or inquiries exist. File a lawsuit with the credit reporting agencies if you notice any errors or false information, and ask them not to include information about your identity theft in your credit report.

3. Contact the Federal Trade Commission (FTC) to report an identity fraud and receive a step-by-step recovery plan.

To report identity theft, get a recovery plan, and get an Identity Theft Report, go to the FTC's website IdentityTheft.gov. You'll be asked some questions about your condition on the website, and the site will then use that information to develop a personalized recovery plan for you. The site will walk you through each phase of the recovery process, allow you to update your plan as needed, monitor your progress, and pre-fill forms and letters for you.

The website also includes template letters for disputing credit card charges, disputing ATM/debit card transactions, and sending identity theft letters to credit bureaus, as well as valuable information about what to do if your identity is stolen, other steps you can take, and specific instructions for some accounts like utilities, phones, government benefits, and checking accounts.

4. Submit an official police report.

In certain cases, you'll be able to clear up credit problems related to identity fraud using an Identity Theft Report rather than a police report. Even so, in some situations, having a police report can be beneficial. To obtain a police report, go to your local police station with the following information:

a copy of your Identity Theft Report from the Federal Trade Commission
a photo ID provided by the government
proof of your residence (mortgage statement, rental agreement, or utility bill)
any other evidence you have of the robbery (bills, IRS notices, etc.)
Memo to Law Enforcement from the Federal Trade Commission

Inform the cops that your identity has been stolen and that you need to file a complaint. Request a copy of the paper, as you will need it to complete other measures on the FTC website or for other reasons.

5. Contact the businesses where fraud has already occurred.

Call the companies mentioned above if any of your accounts have been tampered with, or new accounts have been opened in your name. Request to talk with someone in the security or fraud department and close or freeze any affected accounts.

Request that companies that have supplied credit bureaus with identity theft-related information stop doing so. In most cases, you must submit an Identity Theft Report to the business's designated address and describe the details relevant to identity theft. After receiving such a letter, the company is usually unable to send the details to any credit bureau.

6. Dealing with debt collectors is a must.

Debt collectors can ask you to pay unpaid bills from fraudulently activated credit accounts while you are dealing with your identity theft case. Inform the debt collector that you are a victim of identity fraud and that you are not responsible for the unpaid bill by phone and in writing. Include copies of records that prove you were the victim of identity fraud, such as a police report and an Identity Theft Report.

After that, the debt collector must inform the creditor that the debt could be the product of identity theft. The debt collector must also give you documentation that verifies the debt. Give the collector a written dispute of the debt along with a copy of your Identity Theft Report as soon as you receive the details. Also, give a copy to the creditor. This will usually provide you with full protection against the debt, which you do not pay. The collector may decide to stop collecting as a result of your details. If not, speaking with a criminal defense attorney may be beneficial. If you receive notice of civil action being taken against you because of debts accrued by the identity thief, you can immediately contact a criminal defense attorney.

7. Make sure your Social Security number isn't being used fraudulently.

To see if anyone is using your Social Security number, go to www.ssa.gov/ and request a copy of your benefits statement. Call the SSA's fraud hotline at 800-269-0271 if you find anyone using your Social Security number fraudulently.

Before a criminal wants to demand a fraudulent refund, you should still file your taxes as soon as possible.

8. Report the fraud to any other creditors or important parties.

If you believe the thief filed a fake change of address form, for example, you should inform the post office and ask service and phone providers to delete fraudulent charges.

Find an Identity Fraud Lawyer in California

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When You Need a Criminal Defense Lawyer for Identity Theft