The state of California has the highest number of identity theft complaints filed with the Federal Trade Commission. According to Statista, there were 55,418 cases reported in 2017. This figure is 20,000 cases higher than the reported cases in Texas which was ranked second.
Identity theft is the act of obtaining another person’s identification information and using it for fraudulent or criminal purposes. As a victim of identity theft in California, there are two main legal redress avenues available to you. You could either file your case as a civil case under the rule of torts or file the case under California Penal Code section 530. Both sets of laws consider identity theft as a crime.
Legal Definitions Under the Penal Code
The legal definition of identity theft is much more extensive than the common definition. The California Penal Code defines identity theft as the willful obtaining, retaining, selling or transfer of an individual’s personal information without their knowledge or consent and using the information for unlawful purposes.
Personal Identity Information
These are sensitive personal details that on their own, can be used to identify an individual. This information is usually contained in various types of identity cards. They are telephone number, name, address, driver’s license number, social security number, health insurance number, employment number, date of birth, bank account number, credit card number, fingerprints, retinal scans, voiceprint, passwords or any other equivalent types of identification.
Prohibited conducts are actions that the law under the California Penal Code considers grounds for conviction of identity theft. They are:
The act of obtaining another person’s personal information without their knowledge and using the information for unlawful activities. An example is when you use another person’s health insurance number to get medical care.
Obtaining personal information without the owner's consent and using them to commit fraud. An example of this is when someone uses your name to obtain a bank loan or get employment.
Transferring, selling or conveying personal information obtained without consent with the intention of committing fraud.
Selling, transferring or conveying an individual’s personal information without their consent while knowing that the information you have shared will be used to commit fraud.
Willfully Obtaining Personal Identity Information
Willfully, in this case, means intentionally or voluntarily. Let’s say that you come back from lunch at work and find a sheet of paper on your desk. On it, is login information to a certain dating website. Out of curiosity, you try to log in and it goes through. While you are there you decide to have a little fun and start sending inappropriate messages to other users or post sexually explicit content.
Although the login information was unsolicited, the Penal Code considers your actions willful. It makes no difference if you stole the information from a folder on your colleague’s desk. The legal definition does not mean you must have sought the information, freely accepting the information still counts as willful.
Fraud as a crime on its own is covered under California criminal Fraud laws. The legal definition of fraud is a willful act that leads to:
Causes the victim to suffer loss.
Most identity theft cases lead to the offender obtaining monetary gain. An example of this is credit card theft. The amount gained by the offender is a loss to the victim. However, the loss doesn’t have to be financial. Let’s say a colleague obtains your email passwords and sends an embarrassing email to all your other colleagues including your boss. If this action leads to you losing your job, the loss is financial. In case you were not fired, the embarrassment and ridicule you suffered because of the email is a form of loss.
Recent Amendments to California Identity Theft Laws
California Privacy Law Amendment (Bill A.B.1710)
This Bill was signed into law by the California governor Jerry Brown on September 30, 2014. It made the following amendments to the existing California personal information privacy laws.
Requires that all businesses that maintain personal information records in the State of California to implement and maintain security protocols to protect their customers. Before the bill, only businesses that owned or licensed personal information were required to comply with California Civil Code Section1798.81.5.
Prohibits advertisement or sale of a person’s Social Security Number SSN. Previously, the California Civil Code only prohibited a person or entity from publicly posting an individual’s social security number.
Requires that in addition to notifying the affected persons, the businesses provide identity theft prevention services at no cost for not less than 12 months. This amendment.
Data Breach Notification Amendment (AB-2525)
This data breach notification amendment was signed into law on September 13, 2016. It requires businesses to disclose cases of data breaches to the data breach victims. Before the bill was signed to law, businesses were required to notify the victims of the breach only if unencrypted data was breached. The new law now requires notification for both encrypted and unencrypted information.
California Consumer Privacy Act CCPA
The act was enacted in June 2018; however, it does not become effective until 2020. A bill SB-1121 was signed into law on September 23, 2018, by the governor of California to clarify some the contentious issues in the CCPA. Although the bill does not change the effective date of the CCPA, it makes the following changes and clarification.
The Consumer Privacy Act is applicable to any business that meets the following conditions
Has an annual gross of over $25 million
Obtains 50% of its revenue from selling personal information
Commercially shares personal information of over 50,000 consumers
CCPA authorizes consumers who fall victim to data breaches to bring civil actions against those businesses that fail to “implement and maintain reasonable security procedures” and their non-compliance leads to the data breach. The amendment bill SB-1121 removes the requirement that the Attorney General is notified of such civil actions within a period of 30 days so that the action can be prosecuted or terminated.
The amendment clarifies that the consumers right to request deletion of personal information must be made be made ‘reasonably accessible” by businesses.
The bill also requires that the information obtained from clinical trials be exempted. It is expected that more amendments will be negotiated before the effective date.
Penalties of Identity Theft Under California Laws
Identity Theft is one of the wobbler offenses in California. A wobbler is an offense that the prosecution can choose to charge as either a felony or a misdemeanor. The particulars of the case and the criminal history of the defendant determine the type of charge.
A misdemeanor charge attracts a maximum fine of $ 1,000 or county jail time not exceeding one year or both. On the other hand, a convicted identity theft felon can be sentenced to maximum jail time of 3 years in a California state prison. The same charge attracts a fine of up to $ 10,000.
You can also be fined and receive the sentence. If found guilty, the defendant is penalized for each use of the personal information obtained. It is important to also note that under federal law, offenders are handed longer sentences. A defendant that is charged under the federal law can spend up to 30 years behind bars.
What are the Legal Defenses for Identity theft?
An identity theft case in California is either prosecuted as a felony or a misdemeanor. A conviction remains on your permanent records for a long time and could hurt your chances of getting a job. It is therefore important to act swiftly and get good legal representation in case you are charged with identity theft. A good legal team can successfully fight the charge and clear your name. The following are the legal defense available to you.
No proof of fraudulent intent
In order to convicted of Identity theft, the prosecution has to prove to the court that not only obtained the personal information without consent but also intended to use the information obtained for fraudulent or unlawful purposes.
Let’s say for example that you acquired another person’s health insurance card or credit card information but you don’t use them. If the owner of these documents sues you for identity theft, you cannot be convicted, there is no evidence of an unlawful purpose. Even if you had purposed to use them but somebody talked you out of it or you simply changed your mind. Under the Penal Code, you are not guilty of identity theft.
If you are a Software provider
Under section 530.5(f) of the penal code, an access software provider is not liable unless there is proof that the service, they offer sells, transfers, conveys, retains or acquires personal information with the intention of defrauding their customers.
Many software providers and companies specialize in interactive computer services are exempted due to the nature of the business. Interactive software is designed to accept human input while they run, by design such software will retain some personal information. They can only be convicted if it can be proven that they used the information to commit fraud. Or if they transferred or sold the information to a third party.
It is not uncommon for people to falsely accuse a defendant of identity theft. The motivations for such accusations may be to settle a score. Fortunately, the law does not deal with hearsay. The courts are not a place to be used to settle personal scores. If the courts determine that the allegations are unfounded, the case will be thrown out. A false accusation could also mean that you are mistakenly identified as the offender. This common if you are the victim of identity theft, and somebody commits the crime in your name.
Types of Identity Theft
Cases of identity theft are broadly classified into three main categories namely, tax identity theft, Medical identity theft, and social identity theft. In California, credit card fraud is the most common type of identity theft accounting for 43% of all cases reported. Tax identity theft comes second at 20%. The following are the major forms of identity theft covered under the Penal Code.
Tax Identity Theft
Tax identity theft happens when your Social Security number is used another person to fraudulently get a job or obtain a tax refund. This type of identity usually takes time for the victims to discover. If this happens to report to the Federal Trade Commission (FTC). The IRS usually sends out a letter to the address that you filed on your federal tax return. This letter is commonly referred to as a 5071C letter.
Medical Identity Theft
Medical Identity theft occurs when your personal identification number is stolen and used to obtain medication, make insurance claims or obtain medical care. Health insurance identification numbers are only to be shared with approved healthcare physicians.
Social Identity Theft
This is the most common type of Identity theft. Majority of victims are celebrities or organizations. A Social media account is created in your name and your photos posted. These fake accounts are then used to scam unsuspecting members of the public.
Financial Identity Theft
Financial identity theft is where the offender benefits financially from the crime. The offender may obtain money, a bank loan or goods. Credit card theft is the most common type of financial identity theft.
Appealing an Identity Theft Conviction
A conviction under the Penal Code is not the end of the line for the offender. The law allows the defendant to file a criminal appeal to contest the decision. The law refers to the individual contesting the decision as the appellant and the alleged victim becomes the respondent. The appellant court reviews the court records of the trial and agrees or denies the application. Under California Laws, a notice of appeal must be filed within 30 days for misdemeanor cases and 60 days for felony cases
After filing the appeal, the prosecution has a maximum of ten days to review and make any corrections to the application. The revised appeal statement is then taken to a trial court. At the trial court, you (the appellant) gets a chance to tell the court why you feel your case was not properly tried. This opening brief is to be submitted to the trial judge within 40 days of filing the appeal. If the trial Judge certifies the appeal, it is then sent to the Appellate Division.
In the state of California, a felony appeal can take up to a year before a ruling is made. Any grievances from this stage are taken to the Supreme Court of California for review.
Grounds for Appeal
During the appeal process, no new evidence is considered. An appeal is only granted if the perceived mistakes could have changed the outcome of the case. Winning an appeal is very difficult since the appellant’s legal team has to prove that mistakes were made. That is why it is important to have a competent legal team on your side. Here are a few legal grounds for filing for a criminal appeal.
Miscarriage of Justice. Miscarriage of justice occurs when the final decision given by the judge is considered unfair or mistaken. It must be established that errors were made in the facts of the case. If for an example a judge is biased during the trial then an appeal can be filed.
Unreasonable verdict. The verdict rendered by a judge must be commensurate with the evidence presented in court. You can appeal if the verdict that was rendered does not match the conviction. The appellant does not necessarily have to be innocent. You can appeal for a reduced sentence.
Prejudicial Errors. You can appeal your conviction if errors in law were made at the trial. Prejudicial errors are mainly to do with improper conduct. Misdirection of the jury or improper conduct of the lawyers.
Why We are the Best Choice
Los Angeles Criminal Lawyer has a long-standing tradition of success. We take Identity theft cases very seriously and we will guide through the process. Should you choose to consult us, you will have the services of a former prosecutor, Jonathan Franklin. Having an experienced criminal attorney on your side can make a big difference on the type on verdict you will receive from a judge.
Given the sensitive nature of identity theft cases, the importance of a pre-trial phase cannot be overlooked. Most cases in the State of California never make to trial. Experienced lawyers can challenge the evidence brought against you and the legally of the evidence submitted. Having a case against you dismissed at this early stage will save you both time and money.