Identity theft, or ID theft, is the fraudulent acquiring and use of information that uniquely identifies someone. ID theft is typically committed for financial gain.
The unique information typically includes items such as Social Security numbers, dates of birth, addresses, phone numbers, email addresses, fax numbers, bank account information, and credit card numbers.
When the thief gains possession of this information, the thief is then ready to impersonate the victim. Armed with the victim’s financial and personal information, the thief, pretending to be the victim, can use that information to withdraw money from the victim’s bank account. The thief can also pretend to be the victim and open a line of credit in the victim’s name, or use an existing line of credit to make purchases.
Identity theft is both a crime and a tort (civil offense). Individuals who discover they have been victims of identity theft can work with state and federal law enforcement agencies to pursue criminal law remedies. Individuals may also, under state consumer privacy laws, consumer protection laws, and laws that prohibit fraud and impersonation, sue the identity thief for financial loss.
Identity thieves obtain access to unique identifying information, such as credit history, personal identification numbers (PINs), and credit reports and scores, through a variety of methods. These methods include sophisticated online measures such as unlawfully accessing information (via phishing, hacking, and other forms of cybercrime). Other methods are more “low-tech,” and include acquiring the information through stealing an individual’s mail, wallet, or purse.
The thief can be sued for fraud, under state consumer privacy and protection laws.
Often times, however, the identity thief may not be the only party that is legally responsible for the theft. Other individuals or entities that come into contact with the stolen information may also be sued under the same state laws. These can include the three major credit bureaus (TransUnion, Equifax, and Experian), as well as banks, and credit institutions.
These entities can be sued on several grounds, including negligence, and breach of fiduciary duty.
Entities such as banks and credit card companies that process ID thieves’ fraudulent transactions, may be sued under the theory of negligence. Generally, to prove negligence, a plaintiff must show that a particular defendant owed them a duty of care, which the defendant breached, resulting in damages. If, for example, an online store acted negligently in allowing a purchase initiated by an identity thief in the victim’s name to go forward, the store may be negligent.
A defendant may also be sued for breach of fiduciary duty. A fiduciary, generally speaking, is a party who has a special relationship with another party (such as attorney-client or doctor-patient). Because of the special relationship, the fiduciary (i.e., the attorney, or the
doctor) must take extra precautions to maintain the privacy of plaintiff’s information.
If, for example, a thief obtainsis the victim’s financial information because a fiduciary bank left its network unsecured, the victim can sue the fiduciary bank for having failed to exercise special care to keep the victim’s information private.
The theories of law under which a victim can recover from thieves and third parties for identity theft include fraud, negligence and breach of fiduciary duty, as discussed above. Through these theories, a plaintiff can often recover monetary damages.
Additional theories under which a victim can sue ID thieves include invasion of privacy, intentional infliction of emotional distress, and appropriation (using without permission) of the plaintiff’s name or likeness. Through these theories, plaintiff can also recover money.
An award of monies that were actually lost is known as an award of compensatory damages. Victims may also be awarded punitive damages. These are monies awarded to deter the thief from future wrongdoing.
Awards of money are generally known as legal relief. Another kind of relief that a court can award is known as equitable relief.
Awarding equitable relief is discretionary. Judges, in deciding whether to award it, are guided by principles of fairness. An example of equitable relief that can be awarded against an ID thief is known as injunctive relief. Injunctive relief can consist of a court requiring a defendant to take a particular action. In ID theft cases, injunctive relief can consist of an order requiring defendant to apologize to plaintiff. A defendant bank may also be ordered to notify others whose data was exposed in the theft.
If you believe you have been the victim of identity theft, you may wish to consult with an identity theft lawyer. The identity theft lawyer can review the facts of your case and can advise you as to what your rights and options are. The lawyer can also represent you at hearings and at trial.