The U.S. Department of Justice broadly defines “identity theft” as a term that applies to all types of crimes that involve obtaining and using someone else’s personal data through fraud or deception for their own economic gain.
For example, suppose a person saves their credit card information on their computer, to a web browser, or within a pre-filled form on a website. If a hacker gains access to it and uses it to purchase things, then this would be considered an act of identity theft.
Another way identity theft can occur is when someone is not careful with their personal data in public. For instance, if while they are in a public place they give out information over the phone, such as their credit card or social security number, a criminal can easily overhear it and write down the information to use later.
As you can see from the above examples, the internet has provided criminals with many more opportunities than they had before the technology existed. Thus, it is very important to use safeguards to protect your personal data both offline and online. Otherwise, you could end up with a criminal history, fraudulent tax records, and a poor credit score all because a thief decided to steal your identity.
How Can Your Identity Be Stolen?
There are numerous ways to steal a person’s identity. Aside from the specific examples provided above, some more general methods that are used to steal identities include:
- Robbery: A criminal can physically steal someone else’s personal information by robbing them of certain items, such as their driver’s license, social security card, debit or credit cards, and so on.
- Phishing: Phishing occurs when a thief poses as a legitimate business and a person is scammed into giving them their personal information in order to make purchases or because they believe they need to update information like their credit card, address, etc.
- Computer Fraud: Computer fraud goes beyond standard hacking. This term may also apply to fraudulent website schemes, deleting sensitive government files, romance scams, and any other activities that happen online and result in a person becoming a victim of identity fraud.
- Social Media: Although this can fall under computer fraud as well, social media can be used for a variety of reasons. A criminal can impersonate someone by using their social media, look for clues about the person that would reveal password hints, find information saved to their social media account, such as a linked bank account, or to message their contacts for documents or sensitive details.
- Mail Theft: A criminal can intercept someone’s physical mail to get personal data as well. Bank statements, credit card statements, and pre-approved credit card offers are all sources of mail that contain key information for thieves.
- Dumpster Diving: An offender may also dig through a person’s trash to search for personal or financial information. Hence, why it is so important to tear up paperwork that displays bank accounts, credit card numbers, handwritten passwords, etc.
How do Identity Thieves Operate?
Children are a major target of identity theft. The reason for this is because they are better candidates for imposter purposes. For instance, most children do not have a credit card, driver license, tax record history, or any other identifying information that leaves a trail. As such, criminals can use children’s information to establish lines of credit, obtain government IDs like passports or licenses, and take out a mortgage on a house.
Identity thieves can get the child’s information by asking them for it in person, messaging them online, or by having access to them. For instance, a parent or guardian who already has the child’s information in their possession may use it to take out loans or open credit card accounts. Thieves can also pose as authority figures (e.g., school administrators), so that the child will feel obligated or trust them enough to give them the information.
As for identity theft of elderly persons, thieves will usually accomplish this in one of two ways. The first is by taking advantage of their lack of knowledge about technology. Oftentimes, elderly persons will not know how to use technology or understand how it works.
This can lead to them posting personal information online where anyone can view it, having poor or no security protections on accounts, or they may refrain from using technology altogether and instead choose less safe options like sending checks through the mail.
The second way that thieves obtain information for elderly persons is through theft by deception. The thief may pretend to be a long lost relative, medical personnel, or show up at their nursing home claiming to be a representative from their bank or other important business and have them sign paperwork.
Regardless of who the target is and how the thief does it, committing identity theft specifically against a child or an elderly person will result in severe legal penalties if convicted.
Who Can be Held Liable for Identity Theft?
If the person knows or law enforcement can find the person who is responsible for the identity theft, then they can be sued in both criminal and civil court.
If the person does not know the person or law enforcement cannot find them, then there may be other avenues for a victim to pursue for legal action. These parties include:
- Credit card companies;
- Credit bureaus;
- Merchants who process credit card transactions;
- Employers; and
- Most likely any other business that had possession of and may be responsible for the stolen information.
Depending on state laws and the circumstances of the case, a person may be able to sue any of these parties based on the following legal theories:
- Breach of fiduciary duty;
- Invasion of privacy;
- Breach of contract;
- Infliction of emotional distress; and
- Any other legal theories listed under the state statute.
What are the Penalties for Identity Theft?
Identity theft is a federal crime and in some cases also a state crime. A defendant who is convicted of identity theft may receive any of the following penalties:
- Punishment for any related crimes (e.g., mail or credit card fraud); and
- Forfeiture of any personal property used to commit or that were gained from the crime.
What If You are the Victim of Identity Theft?
There are several ways that a victim of identity theft can report the incident. This includes:
- Filing a report with a local police department;
- Alerting their banks, credit card companies, and other financial or government institutions;
- Requesting financial or other affected accounts be cancelled or closed; and
- Reporting the incident to the Federal Trade Commission (FTC).
In addition, it may be useful to consider getting a lawyer for identity theft issues. Lawyers who handle identity theft matters will be familiar with both federal and state laws, causes of action, and the overall process required to potentially reach a successful resolution. They will also know which parties to sue and which ones may not be worth the time and costs.
How Much Can You Sue for Identity Theft?
As discussed above, if the person knows or the police can find the person responsible for the identity theft, then the victim may be able to sue in civil court. If the lawsuit is successful, the victim can potentially recover:
- Compensatory damages: This is the most common type of damages award issued and will cover financial losses caused by the crime.
- Punitive damages: In rare and extraordinary instances of identity theft, a victim may be able to claim punitive damages. Punitive damages are meant to both provide the victim with additional monies, and to punish and deter the defendant from committing future offenses.
- Emotional damages: If the victim suffered emotional distress (e.g., anxiety or depression) due to the theft, they may be able to recover emotional damages. However, it is often very difficult to obtain these damages.
- Injunctive relief: Injunctions are court orders that require a defendant to take or refrain from a certain action. For identity theft purposes, the court may order the defendant to apologize, notify persons about the data exposure, and possibly release the victim from financial liability for debts they did not cause.
On the other hand, in a criminal matter, the goal is to punish the defendant. Thus, any fines the defendant is ordered to pay will go directly to the federal or state government. However, in some cases, the victim may be able to request restitution. If granted, the defendant will be required to compensate the victim for any out-of-pockets costs resulting from the crime.
How Can I Sue Someone for Identity Theft?
As previously mentioned, the first thing a victim must do is to figure out who stole their identity. If they do not know offhand, then they should file a report with their local police department. If the police capture the offender, they will conduct an investigation and submit their findings to the local district attorney’s office.
From there, an attorney will be assigned to the case, review the evidence, and decide whether to prosecute the offender. If the prosecutor presses charges, the defendant will be tried and punished in criminal court.
If the criminal case is unsuccessful or the victim requires compensation for the crime, they may bring a case in civil court based on a tort law theory. They can do this by hiring a private attorney and having them assemble their case.
In a situation where the victim does not know the thief and law enforcement cannot locate them, it may be possible to go after some of the parties listed in the above section for “who can be held liable.” Each agency and financial institution may have a different procedure to follow in order to bring a lawsuit. Additionally, each state also has separate laws and procedures for filing identity theft lawsuits and related claims.
Thus, it may be in a person’s best interest to contact an attorney for advice regarding identity theft lawsuits.
What Can I Recover?
Aside from recovering identity theft compensation (i.e., court ordered damages), a victim will also have certain rights under the Fair Credit Reporting Act (FCRA), such as stopping creditors and debt collectors from reporting fraudulent accounts, getting extended fraud alert protection on credit reports, and requesting that fraudulent information be removed from credit reports.
Additionally, if the victim is a business, they can also request that fraud alerts be put on their business accounts and if their name or trademarks were tampered with, they can contact the Secretary of State to amend their filings.
However, when it comes to lost assets, it is generally much harder to recover monetary damages as a business since an individual thief will usually not have the funds to compensate them for such a major loss; especially, if they are sentenced to prison.
Do I Need to Hire an Attorney if I am a Victim of Identity Theft?
As is evident from the above discussion, recovering from identity theft is a very complex process. There are multiple parties that can be sued, various laws that must be filed, different procedures that must be followed, and many measures that must be taken afterwards to prevent it from happening again.
Therefore, if you are a victim of identity theft, it may be in your best interest to hire a local identity theft attorney, or alternatively, a criminal lawyer. Your lawyer can discuss what rights you have, what you can potentially recover, and whether you have a supportable case. If you have a case, your lawyer can help you prepare and file it, as well as represent you on the matter in court.
In addition, your lawyer can also assist you with the recovery process, provide guidance on which financial institutions or government agencies to contact, and explain how to report an instance of identity theft to the FTC.