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

Country Correspondents  Title:
FINDINGS
 ANNEX: Preliminary findings on ID theft and ID fraud

 

Findings

The United States passed the Identity Theft and Assumption Deterrence Act of 1998 (Identity Theft Act) in 1998. This Act amended 18 U.S.C. § 1028 to make it a federal crime when anyone ‘knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law’ (18 U.S.C. § 1028(a)(7)). Apart from this federal legislation, most US states have enacted specific ID theft legislation. It is interesting to note that this criminalisation of ‘ID theft’ focuses not on the identity of someone else, but on the ‘means of identification’ (a document, card, password, etc.)  that may be used or transferred. It thus seems somewhat narrower than the definition of ID theft mentioned above in section 1.2, which includes all kinds of documents and data that may be used to pass off as someone else, not only ‘identification’ data. Nevertheless, it is a general criminalisation. And despite the title of the Act, it penalises ID fraud rather than ID ‘theft’.

Contrary to the US, however, so far, no specific provisions about ID theft or ID fraud have been found in European Union member states. Perhaps, the reason for this is the lack of usefulness of the term ID theft, as well as the multifacetedness of the term ID fraud, which, as explained in section 1.2, can cover various forms and be perpetrated with varying intentions and goals. 

Specific forms of ID fraud, therefore, may be penalised in specific, detailed criminal provisions, such as the forgery of official ID documents or impersonation, but the usurpation of someone else’s identity to commit fraud or to enhance any other unlawful activity is as such not generally criminalised. This is not to say that usurpation of a false identity is always lawful – in certain circumstances, it might, for instance, be criminalised as an attempt to defraud or attempted theft. Moreover, the subsequent use of a false identity will usually be criminalised by traditional offences like fraud, theft, or forgery. These traditional criminal provisions, however, were not the subject of the initial scope of the survey.

This leads to the conclusion that the survey must be broadened with a search for traditional criminal-law provisions that may cover the various forms of ID fraud. Therefore, the survey of ID fraud legislation will continue into the second Workplan period. Intermediate results will be published directly in the ID Law Survey, and a revised version of this deliverable will be presented at the end of the second Workplan period.  

 

 

Country Correspondents  fidis-wp5-del5.1.law_survey_03.sxw  ANNEX: Preliminary findings on ID theft and ID fraud
Denis Royer 7 / 8