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Encryption Blog

Aggravated Prosecution

Created: 20 Oct 2008 • Updated: 05 Nov 2012
Doug McLean's picture
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The Supreme Court announced today that they would hear the first case on identity theft to reach the high court. When I first saw the headline I thought great, now maybe we'll get some focus on this issue. Unfortunately, the case itself is only peripherally about identity theft.

The core issue is just how much latitude the court is willing to give prosecutors in pursuing illegal immigration cases. It turns out that one of the legal tactics now being used by prosecutors against those caught in the U.S. illegally is to threaten to charge them with identity theft in order to get them to plead to the lesser charge of entering the country without proper documentation. The case hinges on whether a defendant is aware that the made up social security number or other details they've invented on their fake documents in fact belong to someone else.

It will certainly be interesting to see how the justices handle this case, but at the moment I'm not in favor of using the nascent identity theft laws in this particular case. Don't get me wrong, I'd be ticked if someone just happened to be using my Social Security number to apply for jobs or worse, file for bankruptcy. But, the circumstances of this case don't qualify as "intent" as defined in the law. Sure, producing or using fake identity documents is illegal and should be prosecuted when it's discovered, but it should, I think, be prosecuted for what it is; a violation of immigration or perhaps forgery, not identity theft.