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Theft of Identity laws - Information on the law about Theft of Identity

civil felony loss class

With modern technology and the attendant changes to the ways we live come new hazards and new crimes. One of the crimes to emerge with new virulence in this high-tech age is that of theft of identity. However, it should be made clear that this is a crime that is as old as history itself. From Jacob stealing Esau's birthright, to Jean Valjean becoming the Mayor, Monsieur Madeleine, to illegal immigrants to the United States fleeing despots of Central America, there have been many different reasons for appropriating another's identity. The computer age has simply made the act very easy, lucrative and possible in proportions and in volumes never before imagined.

As the name of the crime suggests, this crime occurs whenever someone appropriates another's identity or portion of it and uses it to appropriate the victim's money, credit or other thing of value. These crimes are particularly susceptible to abuse in an electronic environment because of the relative anonymity of online or telephone transactions. With nothing more than a credit card number, social security number or bank number, an unscrupulous person may be able to steal a victim's money or defraud unsuspecting banks or credit card companies by applying for and obtaining credit cards or credit lines.

But money is not the only goal of identity thieves. People may simply want a driver's license, passport, academic credentials or a credit history. With such things, people can enter or reside in the country illegally, or simply start lives over again.

The occurrence of these sorts of crimes is growing steadily. Relatively scarce a half century ago, official estimates now place the occurrence of identity theft at nearly a million a year. In response to the growing concern and attendant losses to businesses and victims, many states have begun to enact legislation to protect the public.

To date, 37 states have responded with laws specifically making identity theft a crime. It should be noted that in all states, theft by whatever means is a crime. The purpose of these statutes is to especially punish people who steal parts of a person's personal identity such as private financial or other personal information. In many cases, these statutes act as enhancements to existing laws. For example, in some states, people found guilty of theft under the Theft of Identity Statute will be automatically guilty of a felony, regardless of the amount stolen. All states have an established dollar amount, usually $1000, below which a theft becomes a misdemeanor. However, in a state without the statute, a person stealing the same amount of money using the same method may only be guilty of a misdemeanor.

There is considerable variation among the states on the particular provisions of the statutes. For example, Alabama and Kentucky have included provisions that make "trafficking" in identities or identity information illegal and state that possession of five or more identities creates a presumption that the person is guilty of trafficking. Some states have also included provisions that list various aggravating factors that will further enhance these crimes. For example, Florida provides for greater penalties if the crime is committed with public records, and Illinois enhances penalties if the crime is perpetrated against an elderly person.

Table 13: Theft of Identity

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
ALABAMA
Ala. Code §§13A-8-190, et seq. No previous convictions & loss of $500 or less: class A misdemeanor; previous convictions or loss of more than $500: class C felony
Restitution for any party suffering loss as a result of the criminal activity
Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors Civil action allowed Greater of $5,000 per incident or 3 times the actual damages; attorney fees and court costs Statutes create the related crimes of 'Trafficking in Stolen Identities'–a class B felony, and 'Obstructing justice using a false identity' – a class C felony
ALASKA
             
ARIZONA
Ariz. Rev. Stat. §13-2008 (2001) Automatic class 4 felony Any prosecuting authority        
ARKANSAS
Ark. Code Ann. §5-37-227 (Michie 1999) Automatic class D felony Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors     Violation also constitutes an unfair or deceptive practice under the Deceptive Trade Practices Act, Ark. Code Ann. §4-88-101 (Michie 1995) et seq.

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
CALIFORNIA
Cal. Penal Code §§530.5 (West 1998) et seq.
Cal. Civil Code §1798.93 (West 2001)
Identity theft is a criminal offense; imprisonment in county jail for up to one year, or $1,000 max. fine, or both; or imprisonment in state prison, $10,000 max. fine, or both Any prosecuting authority   Civil action is allowed against those who make a mistaken claim against the victim of identity theft For claims brought against victim as a result of identity theft, victim may receive a declaration that he is not obligated on the claim, an injunction to stop attempts to collect, actual damages, attorney fees and costs, and a possible civil penalty up to $30,000 Department of Justice is required to establish a database of identity theft victims (to help clear their names); there are several other measures to assist identity theft victims
COLORADO
Colo. Rev. Stat. §13-21-109.5 (1998) Criminal offense limited to identity theft using another's social security number Any prosecuting authority   Civil action allowed Victim may recover preliminary and equitable relief as court deems appropriate, and greater of actual damages or liquidated damages up to $10,000; court may assess attorney fees and other reasonable litigation costs  
CONNECTICUT
Criminal: Conn. Gen. Stat. §53a-129a (2001); Civil: Conn. Gen. Stat. §52-571h (2001) Automatic class D felony Any prosecuting authority   Civil action allowed Greater of $1,000 or treble damages; costs and reasonable attorney fees if plaintiff prevails  

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
DELAWARE
Del. Code Ann. Tit. 11, §854 (2000) If victim is less than 62 years of age: class E felony; If victim is 62 or older: class D felony
Full restitution ordered to victim, including lost wages, reasonable attorney fees
Any prosecuting authority       Person who possesses credit cards, or other documents of another for purpose of identity theft guilty of 'possession of burglar's tools' (class F felony) Del. Code Ann. Tit. 11, §828 (2000)
DISTRICT OF COLUMBIA
             
FLORIDA
§817.568, .569 3rd degree felony; restitution to victim may be ordered, including attorney's fees Any prosecuting attorney   Civil action allowed   If public records used to commit offense, the offense is reclassified to next higher degree

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
GEORGIA
Ga. Code Ann. §§16-9-120 (1998) et seq. Identity theft is a criminal offense; not less than 1 nor more than 10 years imprisonment or a fine not to exceed $100,000, or both; restitution to any victims may be ordered Attorney General or district attorney in county where crime committed Criminal statute does not apply to those who lawfully obtain credit information for a bona fide commercial transaction or who exercise rights of a creditor in good faith      
HAWAII
§708-839.6 Class A felony for identity theft in the 1st degree; class B felony for 2nd degree identity theft; class C felony for 3rd degree identity theft Any prosecuting attorney        
IDAHO
Idaho Code §18-3126, 3128 (1999) Identity theft is a criminal offense; misdemeanor, fine up to $1,000 or up to 1 yr. in county jail or both; felony if loss exceeds $300, fine up to $50,000 or max. of 5 yrs. in prison or both Any prosecuting authority        

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
ILLINOIS
720 Ill. Comp. Stat. 5/16G-1 (West 1999) et seq. Loss not exceeding $300: class A misdemeanor; if previous conviction for identity theft or several other theft and fraud related crimes: class 4 felony; loss exceeding $300 but not exceeding $2,000: class 4 felony; loss exceeding $2,000 but not exceeding $10,000: class 3 felony; loss exceeding $10,000 but not exceeding $100, 000: class 2 felony; loss exceeding $100,000: class 1 felony
"Aggravated Identity Theft" occurs when the victim is 60 years of age or older or disabled; if loss does not exceed $300: class 4 felony; if loss exceeds $300 but does not exceed $10,000: class 3 felony; if loss exceeds $10,000 but does not exceed $100,000; class 2 felony; if loss exceeds $100,000: class 1 felony; any subsequent offense regardless of loss: class X felony
Any prosecuting authority   Civil action allowed May recover court costs, attorney's fees, lost wages, and actual damages  
INDIANA
Ind. Code §35-43-5-3.5 (2001) Automatic class D felony Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors      
IOWA
Criminal: Iowa Code §715A.8 (2001); Civil: Iowa Code §714.16B (2001) If loss is $1,000 or less: aggravated misdemeanor; if loss exceeds $1,000: class D felony Any prosecuting authority   Civil action allowed Greater of $1,000 or 3 times the actual damages; attorney fees and court costs The value of property or services stolen will be its highest value by any reasonable standard

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
KANSAS
Kan. Stat. Ann. §21-4018 (2000) Automatic severity level 7, person felony Any prosecuting authority        
KENTUCKY
Ky. Rev. Stat. Ann. §514.160; 532.034; 15.231; 411.210; 514.170 Automatic class D felony
Perpetrator forfeits all right to the identifying information, property, or other benefits resulting from the crime
Restitution shall be ordered for any costs incurred by victim to correct credit record, including lost wages and attorney's fees; restitution shall be ordered for any financial institution which suffers a direct financial loss
Attorney General has concurrent jurisdiction with Commonwealth attorneys and county attorneys Criminal statute does not apply to minors seeking to obtain privileges denied to minors; does not apply to credit or debit card fraud (which is covered under other code sections) Civil action allowed Compensatory and punitive damages, and reasonable costs and attorney fees if plaintiff prevails "Trafficking in Stolen Identities," for which possession of 5 or more separate identities is a prima facie evidence, is a class C felony
LOUISIANA
La. Rev. Stat. Ann. §14:67.16 (West 1999) If loss of $1,000 or more: imprisonment with or without hard labor up to 10 years, or fine up to $10,000, or both; if loss of $500 or more, but less than $1,000: imprisonment with or without hard labor up to 5 years, or fine up to $5,000, or both; if loss of $300 or more, but less than $500: imprisonment with or without hard labor up to 3 years, or fine up to $3,000, or both; if loss of less than $300: imprisonment with or without hard labor up to 6 months, or fine up to $500, or both, but if there have been 2 or more previous convictions: imprisonment with or without hard labor up to 3 years, or fine up to $3,000, or both; perpetrator may be ordered to make full restitution to victim and any other person who suffers financial loss Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors      

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
MAINE
             
MARYLAND
Md. Ann. Code Crim §8-301 If loss is less than $500: misdemeanor, imprisonment not exceeding 18 months or max. fine of $5,000 or both; if loss of $500 or more: felony, imprisonment not exceeding 5 yrs. or max. fine of $25,000 or both; restitution may be ordered for and attorney fees, costs to clear credit rating, costs of civil/administrative proceeding to satisfy debt, lien, judgment, or other obligation resulting from crime Any prosecuting authority        
MASSACHUSETTS
Mass. Gen. Laws ch. 266, §37E (2000) Identity theft is a criminal offense
Imprisonment up to 2 ½ years, or fine up to $5,000, or both; perpetrator shall be ordered to make restitution for costs to correct credit history and costs of civil/administrative proceeding to satisfy debt, or other obligation resulting from crime
Any prosecuting authority        
MICHIGAN
             

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
MINNESOTA
Minn. Stat. §609.527 (2000) Identity theft is a criminal offense
If single victim, total loss of $250 or less: imprisonment up to 90 days, or fine up to $700, or both; if single victim, total loss more than $250 up to $500: imprisonment up to 1 year, or fine up to $3,000, or both; if two or three victims, or total loss of more than $500 up to $2,500: imprisonment up to 5 years, or fine up to $10,000, or both; if four or more victims, or total loss of more than $2,500: imprisonment up to 10 years, or fine up to $20,000, or both; victim of crime has rights to restitution
Any prosecuting authority        
MISSISSIPPI
             
MISSOURI
Mo. Rev. Stat. §570.223 (1999) Identity theft is a criminal offense
First offense: up to 6 months in jail; second offense: up to 1 year in jail; third or subsequent offense: 1 to 5 years imprisonment; court may order restitution for costs to correct credit history and any costs of civil/administrative proceeding to satisfy debt, lien, judgment, or other obligation resulting from crime
Any prosecuting authority        

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
MONTANA
Mont. Code Ann. §45-6-332 (2001) Identity theft is a criminal offense
If loss up to $1,000: imprisonment in county jail up to 6 months, fine up to $1,000, or both; if loss of $1,000 or more: imprisonment in state prison up to 10 years, fine up to $10,000, or both; restitution may be ordered including attorney fees, costs incurred in clearing credit rating, costs of civil/administrative proceeding to satisfy debt, lien, judgment, or other obligation resulting from crime
Any prosecuting authority        
NEBRASKA
28-608; 29-2280 If loss of $0 or more but less than $200: class II misdemeanor; second offense at this loss amount: class I misdemeanor; third or subsequent offense at this loss amount: class IV felony; if loss of $200 or more but less than $500: class I misdemeanor; second or subsequent offense at this loss amount: class IV felony; if loss of $500 or more but less than $1,500: class IV felony; if loss of $1,500 or more: class III felony; amount of loss calculated from aggregate of one identity theft scheme or course of conduct from one person
In addition to regular penalties, perpetrator shall be ordered to make restitution for costs incurred including attorney fees, litigation costs, costs to clear credit rating, costs of civil/administrative proceeding to satisfy debt, lien, or other obligation resulting from crime
County attorney of any county in which any part of identity fraud occurred may prosecute It is not violation of criminal statute to obtain credit information in course of bona fide transaction, lawfully and in good faith exercise a security interest or right of offset as a creditor or financial institution, lawfully comply, in good faith, with any warrant, levy, garnishment, etc. when required to do so Civil action allowed Victim may seek damages, enjoin/restrain perpetrator from future acts of theft; prevailing party may recover court costs and attorney fees  
NEVADA
205.463 Category B felony, min. 1 yr. and max. 20 yrs. and possible max. fine of $100,000; restitution including attorney's fees and cost          

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
NEW HAMPSHIRE
N.H. Rev. Stat. Ann. §§638:25 (2000) et seq. If loss exceeds $1,000: class A felony; all other cases: class B felony
Perpetrator shall be ordered to make restitution for economic losses sustained by victim Any prosecuting authority
         
NEW JERSEY
N.J. Stat. Ann. §2C:21-17 (West 1999) If loss is less than $500: crime of the fourth degree; if loss is $500 or more but less than $75,000: crime of the third degree; if loss is $75,000 or more: crime of the second degree   Criminal statute does not apply to minors attempting to obtain privileges denied to minors      
NEW MEXICO
N.M. Stat. Ann. §30-16-24.1 (Michie 2001) Misdemeanor only
In addition to other punishment, perpetrator shall be ordered to make restitution to victim for outof-pocket costs, attorney fees, costs to clear credit rating, costs of civil/administrative proceeding to satisfy debt, lien, or other obligation resulting from crime
         
NEW YORK
Penal 190.77, et seq. Class A misdemeanor for identity theft in 3rd degree; class E felony for identity theft in 2nd degree; class D felony for identity theft in 1st degree   Does not apply to minors attempting to obtain privileges denied to minors      

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
NORTH CAROLINA
N.C. Gen. Stat. §§14-113.20 (2000) et seq.; 1-539.2C Automatic class G felony; if victim suffers arrest, detention, or conviction as a result of the offense: class F felony; restitution may be ordered, including actual losses, lost wages, attorney's fees, and other costs Attorney General may investigate, but shall refer all cases to district attorney of county in which crime occurred It is not violation of criminal statute to obtain credit information in course of bona fide transaction, lawfully and in good faith exercise a security interest or right of offset as a creditor or financial institution, lawfully comply, in good faith, with any warrant, levy, garnishment, etc. when required to do so Civil action allowed Civil damages up to the greater of $5,000 per incident of identity theft or 3 times the actual damages; victim may enjoin identity thief from future acts of theft; the court may award reasonable attorney fees to the prevailing party Trafficking in stolen identities is a class E felony
NORTH DAKOTA
N.D. Cent. Code §32-03-52 (1999) Criminal offense limited to identity theft using another's social security number Any prosecuting authority     Victim may recover any equitable relief court deems appropriate and the greater of actual damages or liquidated damages of up to $10,000; court may award victim attorney fees, other litigation costs  
OHIO
             

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
OKLAHOMA
Okla. Stat. tit. 21, §1533.1 (2001) Automatic felony
Imprisonment up to 2 years, or fine up to $10,000, or both
Any prosecuting authority        
OREGON
Or. Rev. Stat. §§165.800; 137.717 Automatic class C felony
Presumptive sentence of 13 months incarceration; longer sentence if the perpetrator has previous convictions for identity theft, forgery, credit card fraud, or computer crime
Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors      
PENNSYLVANIA
18 Pa. Cons. Stat. §4120; 42 Pa. Cons. Stat. §9720.1 If loss is less than $2,000: misdemeanor of the 1st degree; if loss is greater than $2,000: felony of the 3rd degree; if victim is 60 yrs. old or older or a care-dependent person: offense is one grade higher
In addition to other sentence, the court may order restitution to victim for attorneys fees, fees of credit bureaus to correct credit record, court costs and filing fees incurred to investigate theft, bring or defend suit related to the theft, or to take action to correct credit record
Attorney General has authority to investigate and prosecute if crime occurs in more than one county or in another state        

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
RHODE ISLAND
R.I. Gen. Laws §§11-49.1-1 (2000) et seq. Automatic felony
First conviction: imprisonment up to 3 years or fine up to $5,000 or both; second conviction: imprisonment for 3 to 5 years or fine up to $10,000 or both; third or subsequent conviction: imprisonment for 5 to 10 years or fine of $15,000 minimum or both
Any prosecuting authority Criminal statute does not apply to minors seeking to obtain privileges denied to minors     Any property used as a means of violating identity theft laws will be seized and forfeited to the state, proceeds to go 20% to Attorney General earmarked for identity theft investigation, 80% to other state/local law enforcement agencies
SOUTH CAROLINA
S.C. Code Ann. §§16-13-510 (Law. Coop. 2000) et seq. Automatic felony
Imprisonment up to 10 years, or fine in the discretion of the court, or both; court may order restitution for victim
Any prosecuting authority        
SOUTH DAKOTA
S.D. Codified Laws §§22-30A-3.1 (Michie 2000) et seq.; §22-6-2 Class 1 misdemeanor
Imprisonment of 1 year in county jail, or fine of $1,000, or both; court shall order restitution to victim
Any prosecuting authority        

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
TENNESSEE
Identity Theft Defined Tenn. Code Ann. §39-14-150 (1999)
'Identity Theft Deterrence Act' Tenn. Code Ann. §§47-18-2101 (1999) et seq.
Automatic class D felony
In addition to usual punishment for class D felony, state will be awarded restitution for reasonable attorney fees, costs and expenses of investigation and prosecution
Attorney General may bring action to restrain or enjoin perpetrator from further identity theft acts, or to request freeze of perpetrator's assets, or for other appropriate or necessary measures; Otherwise any prosecuting authority may prosecute   Civil action allowed Court may award 3 times the actual damages, and other relief as is necessary and proper; victim may enjoin perpetrator from further actions in violation of identity theft laws; victim may be awarded attorneys' fees and costs; civil penalty shall be awarded equal to the greatest of: $10,000, $5,000 per each day victim's identity is assumed, or 10 times the amount obtained or attempted to be obtained; victim shall receive restitution for all ascertainable loss, plus interest on the loss If injunction obtained by Attorney General Is violated: civil penalty of up to $5,000 per violation, plus contempt sanctions and award of attorney fees and costs to state for additional filings;
Violation of identity theft laws will be a violation of "Tennessee Consumer Protection Act of 1977"
TEXAS
Penal §32.51 State jail felony; restitution may be ordered including loss of income or other expenses, other than attorney's fees          

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
UTAH
Utah Code Ann. §§76-6-1101 (2000) et seq. If loss is less than $1,000: class A misdemeanor; if loss is $1,000 or more but less than $5,000: third degree felony;
If loss is $5,000 or more: second degree felony; multiple violations in are aggregated into a single offense
Attorney general must investigate violations in addition to other law enforcement agencies       Any violation of identity theft laws is also a violation of the 'Utah Consumer Sales Practices Act'
VERMONT
             
VIRGINIA
Va. Code Ann. §18.2-186.3 (Michie 2001) Loss up to $200: class 1 misdemeanor; second violation or loss of more than $200: class 6 felony; if violation results in arrest and detention of person whose identification documents or information were used to avoid summons, arrest, prosecution, or to impede a criminal investigation: class 6 felony
In addition to other punishment, court shall order perpetrator to make restitution to victim as the court deems appropriate, including victim's expenses in correcting credit report or other records
Any prosecuting authority       Attorney General may assist victim to obtain information necessary to correct victim's credit report or other records, if such assistance is requested

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
WASHINGTON
Wash. Rev. Code §§9.35.001 (1999) et seq. If loss is less than $1,500 ("identity theft in second degree"): class C felony; if loss is greater than $1,500 ("identity theft in the first degree"): class B felony
Perpetrator is liable for the greater of $500 or actual damages, and for reasonable attorney fees
Any prosecuting authority Criminal statute does not apply to: (1) efforts by financial institutions to test security procedures or to maintain confidentiality of customer information, (2) investigations of employee misconduct or negligence, or (3) efforts to recover personal information of the financial institution obtained by another person in any manner described in (1) or (2) above;
Criminal statute does not apply to minors seeking to obtain privileges denied to minors
Civil action allowed Civil damages equal to the greater of $500 or actual damages, including costs to repair victim's credit record and reasonable attorney fees Any person or entity with whom the perpetrator undertook a transaction in the victim's name must provide the victim with all relevant information upon request;
Violation of identity theft laws will be an unfair or deceptive act in trade or commerce and an unfair method of competition for purposes of the consumer protection act
WEST VIRGINIA
§61-3-54 Felony; up to 5 yrs, in penitentiary or fined not more than $1,000 or both   Criminal statute does not apply to minors seeking to obtain privileges denied to minors      

Table 13: Theft of Identity—Continued

Code Section Crime/Penalties Who May Prosecute Exemptions Civil Action Civil Remedies Misc.
WISCONSIN
§943.201 Class H felony          
WYOMING
Wyo. Stat. Ann. §6-3-901; §1-1-128 If loss is less than $500: misdemeanor; if loss of $500 or more: felony
If misdemeanor: imprisonment up to 6 months, or fine up to $750, or both; if felony: imprisonment up to 10 years, or fine up to $10,000, or both; court may order restitution to victim for costs incurred, including attorney fees, costs to clear credit history, costs of civil/administrative proceeding to satisfy debt, lien, or other obligation resulting from crime
Any prosecuting authority   Civil action allowed Victim may enjoin/restrain perpetrator from further violations of identity theft law; victim may recover damages subject to setoff against judgment ordered under criminal law; prevailing party may recover court costs and attorney fees  
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