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D5.1: A survey on legislation on ID theft in the EU and…

FIDIS Background  Title:
ID THEFT AND ID FRAUD
 Description of activity

 

ID Theft and ID fraud

 

Identity theft is a growing concern in the information society. One definition of this is as follows: 

  • ‘Identity theft, in what in this paper is called its ‘paradigm’ form, occurs when one person – in this study a “rogue” – obtains data or documents belonging to another - the victim - and then passes himself off as the victim.’ (N. Mitchison, M. Wilikens, L. Breitenbach, R. Urry, S. Portesi (IPSC), Identity Theft. A Discussion Paper, March 2004, p. 5)

In fact, ID theft is a somewhat misleading term, since the identity is copied but not taken away from the original ‘owner’. Particularly from a legal point of view, an identity cannot be ‘stolen’, since the person whose identity has been taken, will still retain his or her identity. Here, ordinary language may diverge from the legal classification. A relevant comparison may be made with the theft of electricity versus the ‘theft’ of computer data. The first can be stolen, since electricity is unique and can only be used once; the second, however, are not unique but multiple, and can therefore be at the disposal of more people at the same time. This is why legislation will usually have different provisions dealing with physical property or goods,  and intellectual property or data.

A better and more general term, therefore, will be ID fraud, which can be described as follows: 

  • Identity fraud means “that someone with malicious intent consciously creates the semblance of an identity that does not belong to him, using the identity of someone else or of a non-existent person” (Grijpink, ‘Identiteitsfraude als uitdaging voor de rechtstaat’ [Identity Fraud as a Challenge to the Rule of Law], Privacy & Informatie August 2003, p. 148ff) [translation BJK].

  • ‘Identity fraud concerns forms of misuse or fraud with respect to identity and identity data, with which a person or a group of persons intends unlawfully to claim government services [overheidsprestaties], or otherwise to derive a benefit unlawfully’ (Dutch Ministry of Justice, ‘Hoofdlijnen kabinetsbeleid fraudebestrijding 2003-2007, 24 June 2003) [translation BJK]. 

Two major forms of ID fraud which emerge from these descriptions are creating a false identity which does not otherwise exist, and taking the identity of an existing person. In the second category, there may also be a qualitative difference between identity fraud with intent to derive a benefit, and identity fraud with intent to cause harm to the person whose identity is assumed.  

There are more distinctions relevant to ID fraud, which seems an umbrella term for a wide variety of activities. What distinctions are relevant within ID fraud may also vary from the perspective taken: in terms of technology, one might categorise ID fraud in different ways than from a legal perspective. The above definition of ID theft, for instance, seems more a functional-descriptive definition that focuses on how the actual act is performed, whereas the definitions mentioned of ID fraud are worded more in legal terms, focusing on the fraudulent intent of the perpetrator. 

The conceptualisation of ID fraud, with its various forms and perspectives, and the relationship between ID theft and ID fraud, are not the subject of this deliverable, but of another one, D5.2, with various papers being written for the WP5 workshop to be held on 18 May 2005 in Tilburg, precisely to get a grasp on this concept of ID fraud. 

The present deliverable, in contrast, is concerned with a relatively simple issue: are ID theft and ID fraud used in law as specific categories of crime? That is, are there specific criminal provisions penalising ID theft and ID fraud as such? 

 

FIDIS Background  fidis-wp5-del5.1.law_survey_03.sxw  Description of activity
Denis Royer 4 / 8