Do Illinois Laws Cover the Full Extent of Identity Theft?

The highest courts in the USA have considered this question and apparently found that to some extent the answer is no. Specifically, the higher courts objected to some of the provisions as they relate to identity theft and the constitutional rights of defendants. The Illinois Supreme Court consequently overturned a key provision of the state identity theft statute. The key contention was that this provision was effectively criminalizing conduct that would otherwise not be considered to be criminal. The case in question involved a Google search in where there was no evidence of criminal intent.  The internet has opened up so many opportunities but also a series of legal nightmares for the profession, particularly with regards to the world of social media, which seems to require laws unto itself. Consequently, there is a genuine fear about the escalating practice of identity theft. The state legislators felt that they had to act even at the expense of civil liberties.

Overkill in Regulating Internet Activity

As is often the case in legal cases, the cure can be as painful as the disease. The innocent end up suffering at the hands of lawmakers who are not as comfortable with new media as they ought to be. The temptation is to ban everything or alternatively to give room for suing over nothing. In the People v Madrigal, No 110194, 2011 WL 1074427 (Ill Sup Ct), the defendant successfully convinced the Illinois Supreme court that the law had become an unfair burden. Specifically, section 16G-15(a) (7) of the Identity Theft Law (720 ILCS 5/16G–1 et seq.) indicated that a criminal offense occurs if a person uses the identity of another in order to gain access to information online without the permission of the person whose identity is being used. The act is clear enough when it comes to criminal activity that involves overstepping identity verification procedures through impersonation in order to commit a crime. However the position is less clear if no criminal purpose is intended.

Gabriela Vasquez was the defendant under a class 3 felony charge, which could potentially attract a five-year prison sentence. The facts alleged that the defendant used the identification details of one Vasquez without their permission in order to access certain information on the internet. One of the arguments presented by the defence team was that the statute failed to specify a culpable mental state, meaning that it had the potential to criminalize all searches even when they were innocent. The trial court found paragraph 16G-15(a) (7) of the Act to be unconstitutional on those grounds, hence dismissing the indictment. The case was referred to the Illinois Supreme Court (SCR 603) where the trial judge’s decision was upheld. The higher court found that the provision was neither rational nor an acceptable use of state power.

What Comes Next?

In the aftermath, the higher court was of the view that the affected paragraph could be remedied by merely adding the necessary intent provision. However, the defence attorney subsequently gave interviews to the effect that he believed the provision should be struck out altogether. He went as far as derogatively labelling the paragraph the “Google Statute,” arguing that there were other provisions of the act that could successfully punish identity theft online without placing an onerous burden on the community. The moral of the story is that legislation that is enacted in zeal to address an urgent problem may not be an appropriate response to a complex issue such as the use of the internet. It is not in dispute that identity theft remains a significant problem in the USA. However, the solution is not to enact clearly unconstitutional catch-all provisions in an effort to appear to be thorough and comprehensive.

If you are being charged with identity theft, contact David Freidberg attorney at law at 312-560-7100 to protect your freedom.

(image courtesy of J. Durham)