Cybercrime: Identity Theft/Fraud

A Cybercrime
Student's Name
Institutional Affiliation
Course Number and Name
Professor's Name
Date
Identity Theft/Fraud
Introduction
Identity theft occurs when one’s personal data is stolen online, to commit criminal acts and fraud. These criminal acts include applying for credit, filing taxes, or acquiring medical services. Identity theft is serious for the victims since it damages their credit status and costs them money and time spent in restoring their initial status (Goel, 2019). In the United States (US), people are mostly online, for their basic needs and communication. The increased internet use has seen one of fiftenn people being at risk of identity fraud every year (Goel, 2019). Today, Americans are more conscious than ever in how they dispose off their personal information online, especially in social media sites.
The concept of identity theft began several decades ago, with criminals who wanted to escape culture. They would often kill people to steal their identities for malicious activities. They would then go on with their lives, without being found out or imprisoned for their criminal activities. At this time, identity theft was so easy since there were no crucial identifying documents such as national identity cards and social security numbers (Steel, 2019). A person’s identity was verified by their word of mouth or unique signature. As technology advanced, mobile phones became a household staple. Thieves would use them to their gain by calling people claiming that they have won a huge chunk of money. They would then ask for their personal information in order to release the money. In 1964, identity theft gained national attention following the increased cases (Steel, 2019). Efforts were made to curb the criminal activity by educating people on how to keep their personal space and information safe. Fastforward, people adopted the internet quickly and attracted more thieves into their online spaces, which have seen a significant increase in identity fraud since the internet became readily available.
For the longest time, thieves have used bank statements, tax notices, and other sensitive information on documents found in people’s trash. However, with the advancement of technology in today’s world, thieves use technology to devise new strategies for identity theft, as a cybercrime (Button & Cross, 2017). Technology has enabled criminal activities such as computer hacking and phising through email scams. Computer hackers usually enter into another computer network where they view personal documents and use them to their advantage. Technology has indeed hastened the evolution of identity fraud.
Identity Theft Legislation
The Identity Theft and Assumption Deterrence Act of 1998 gave rise to section 1028(a)(7) of the U.S. code, criminalizing identity theft. The Section prohibits the transfer, possession, or usage of another person's means of identification for criminal purposes or any unlawful activities that violate Federal law or that amount to felonies under local or State law. 18 U.S.C. § 1028(d)(7) gives examples of means of identification, which include unique identifiers such as social security numbers, as well as non-unique identifiers such as date of birth (FindLaw, 2022). In retrospect, the Fourth Circuit in United States v. Mitchell held that non-unique identifiers might only be regarded as means of identification if employed with further information that allows the identification of a particular person (Helser & Hwang, 2021). In 2004, The Identity Theft Penalty Enhancement Act introduced Section 1028A of aggravated Identity, which is more suitable for computer-related crimes. 18 U.S.C. § 1028A is applicable where a defendant with full knowledge either possesses, transfers or employs a different person's identification means with no lawful authorization during and concerning a felony violation of particular federal offences (FindLaw, 2022).
After the establishment of Section 1028A, there was disagreement over the issue of "knowledge." In United States v. Godin, the First Circuit court held that a defendant must be aware that the means of identification were someone else’s (FindLaw, 2022). The 9th circuit affirmed the decision in United States v. Miranda-Lopez. Still, the decision was overruled by the 8th circuit court in United States v. Mendoza-Gonzalez, who ignored the knowledge requirement (U.S. v. Kowal, No. 07-3353., 2022). The decision was upheld in United States v. Hurtado and United States v. Montejo. In 2009, the Supreme Court settled the issue in Flores-Figueroa v. the United States, holding that knowledge was a requirement under Section 1028A, and it was the government's burden to prove that the defendant knew the means of identification belonged to another person (FindLaw's the United States Supreme Court case and opinions., 2022).
Penalties for the violation of section 1028(a)(7) carry a prison term of fewer than five years. Nevertheless, in cases where an offender obtains things aggregating over a thousand dollars during one year, the violation carries a fine and a prison sentence of not more than 15 years. Still, crimes in violation of this Section may fetch higher sentences in cases involving violent crimes, acts of terrorism, or drug trafficking. What's more, The Identity Theft Enforcement and Restitution Act of 2008 introduced provision 18 U.S.C. § 3663(b)(6), enabling courts to offer compensation to victims paid by the offenders for the expense and time spent by the victim remedying the intended or actual harm that resulted from the offence.
The violation of Section 1028A carries a mandatory two-year prison sentence and an additional five years in cases where aggravated identity theft is connected to terrorism. Noteworthy, 18 U.S.C. § 1028A(b) Provides that additional prison sentences related to the violation of Section 1028A should be served consecutively (FindLaw, 2022). What's more, provision 18 U.S.C. § 3663(b)(6) also applies for violations under this Section, providing compensation for time and money spent by the victims when remedying the intended or actual harm that resulted from the offence (Menčik, 2020).
Legislation Gaps and Limitations
The legislation provisions of identity theft have limitations and ambiguities, such as the controversial knowledge requirement of 18 U.S.C. § 1028A. Again, the burden placed on the government by the Supreme Court's interpretation of section 1028(a)(7) hinders the prosecution of many offenders. It compels the government to forfeit cases where the scope of evidence does not meet the burden regarding intent (Renu, 2019).
Further exposing gaps may result in ambiguous interpretation or limit the government's ability to prosecute some cyber theft identity offenders. We shall dissect the three phases of 18 U.S.C. § 1028(d)(7) and Section 1028A(a)(1).
1028(a)(7) provides: Whoever, …(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law. . .1028A provides Whoever, "knowingly transfers possesses, or uses, without lawful authority, a means of identification of another person" during and concerning any felony violation of certain enumerated federal offences.
Generally interpreted, the two provisions criminalize identification theft widely buy on three distinct quotas. According to the first part of the provision, one needs to possess or have owned Identity-related material (in the case of transfer) to be an offender. However, the first portion of both provisions is limited, focused on the transfer of means of identification. Transfer in this sense can be interpreted to mean moving identification material in a victim's possession to the offender's. Conversely, the moving of identification material that was already illegally acquired from the victim to another offender. To that end, the provision broadly criminalizes transfer but omits the offender's acts before the transfer begins. In any case, the provision does not apply when a victim starts the transfer process because there is no regard for the process of transfer started by the offender.
In the second phase, the provision assumes the offender already possesses the identical material and further attaches it to criminal use. To that end, the provision requires the possession to be intended for criminal use. Therefore, it is difficult for law enforcers to prove intent when offenders are caught possessing Identity-related material before use. It also doesn't recognize the illegal possession of identification material without apparent intent as an offence. Suppose one, for instance, acquires other people's identification material and possesses it with the motive to sell, then the provision does not cover the possession as an offence (Pavlik, 2017).
In the third part, the provision criminalizes use when the motive for such use is to commit an offence. In retrospect, the provision does not fuse to any specific offence, which makes the provision too broad (Pavlik, 2017). As earlier mentioned, acts executed before transfer or possession, such as the creation of malware designed to steal other people's Identities, are not covered by the provisions. To this end, while section 1028(a)(7 and Section 1028A(a)(1) broadly regards offences related to identification theft, the provisions omit a wide range of identity theft acts, particularly the ones where the victim is acting, and the offender is not, or where the offender is a puppeteer.
Texas Identity Theft Law
Identity theft is part of the law in my home state, Texas. Under Texas law, identity theft offences are categorized into two. The first category involves the fraudulent use or possession of identification information. To be guilty of this offence, one must possess, use or transfer other people's means of identification without authorization. Section 32.51, Of the Texas penal code penalizes the offence of fraudulent use or possession of identification information depending on the classification of the offence (FindLaw, 2022). The offence can be considered a state jail felony or a felony of the third, second, or first degree. Under Texas law, identity-related information includes but is not limited to, Personal names, social security numbers, fingerprints, date of birth, and driving licenses.
In addition, recording other people's credit card or bank card information without the victim's consent is considered identity theft. Recording the information mentioned earlier is treated as a class B misdemeanour, while the transfer of the information is treated as a class A misdemeanour. Penalties for the offences mentioned above vary, but they can carry a ...