[Congressional Record Volume 144, Number 105 (Thursday, July 30, 1998)]
[Senate]
[Pages S9501-S9504]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IDENTITY THEFT AND ASSUMPTION DETERRENCE ACT OF 1998
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 460, S. 512.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
A bill (S. 512) to amend chapter 47 of title 18, United
States Code, relating to identity fraud, and for other
purposes.
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on the Judiciary, with an
amendment to strike all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Identity Theft and
Assumption Deterrence Act of 1998''.
SEC. 2. IDENTITY THEFT.
(a) Establishment of Offense.--Section 1028(a) of title 18,
United States Code, is amended--
(1) in paragraph (5), by striking ``or'' at the end;
(2) in paragraph (6), by adding ``or'' at the end;
(3) in the flush matter following paragraph (6), by
striking ``or attempts to do so,''; and
(4) by inserting after paragraph (6) the following:
``(7) knowingly possesses, transfers, or uses, without
lawful authority, a means of identification of another person
with the intent to commit, or otherwise promote, carry on, or
facilitate any unlawful activity that constitutes a violation
of Federal law, or that constitutes a felony under any
applicable State or local law;''.
(b) Penalties.--Section 1028(b) of title 18, United States
Code, is amended--
(1) in paragraph (1)--
[[Page S9502]]
(A) in subparagraph (B), by striking ``or'' at the end
(B) in subparagraph (C), by adding ``or'' at the end; and
(C) by adding at the end the following:
``(D) an offense under paragraph (7) of such subsection
that involves the transfer, possession, or use of 1 or more
means of identification if, as a result of the offense, any
individual committing the offense obtains anything of value
aggregating $1,000 or more during any 1-year period;'';
(2) in paragraph (2)(A), by striking ``or transfer of an
identification document or'' and inserting ``possession,
transfer, or use of a means of identification, an
identification document, or a'';
(3) by striking paragraphs (3) and (4) and inserting the
following:
``(3) a fine under this title or imprisonment for not more
than 20 years, or both, if the offense is committed--
``(A) to facilitate a drug trafficking crime (as defined in
section 929(a)(2)); or
``(B) after a prior conviction under this section becomes
final;
``(4) a fine under this title or imprisonment for not more
than 25 years, or both, if the offense is committed--
``(A) to facilitate an act of international terrorism (as
defined in section 2331(1)); or
``(B) in connection with a crime of violence (as defined in
section 924(c)(3));'';
(4) by redesignating paragraph (5) as paragraph (6); and
(5) by inserting after paragraph (4) (as added by paragraph
(3) of this subsection) the following:
``(5) in the case of any offense under subsection (a),
forfeiture to the United States of any personal property used
or intended to be used to commit the offense; and''.
(c) Circumstances.--Section 1028(c) of title 18, United
States Code, is amended by striking paragraph (3) and
inserting the following:
``(3) either--
``(A) the production, transfer, possession, or use
prohibited by this section is in or affects interstate or
foreign commerce; or
``(B) the means of identification, identification document,
false identification document, or document-making implement
is transported in the mail in the course of the production,
transfer, possession, or use prohibited by this section.''.
(d) Definitions.--Section 1028 of title 18, United States
Code, is amended by striking subsection (d) and inserting the
following:
``(d) Definitions.--In this section:
``(1) Document-making implement.--The term `document-making
implement' means any implement, impression, electronic
device, or computer hardware or software, that is
specifically configured or primarily used for making an
identification document, a false identification document, or
another document-making implement.
``(2) Identification document.--The term `identification
document' means a document made or issued by or under the
authority of the United States Government, a State, political
subdivision of a State, a foreign government, political
subdivision of a foreign government, an international
governmental or an international quasi-governmental
organization which, when completed with information
concerning a particular individual, is of a type intended or
commonly accepted for the purpose of identification of
individuals.
``(3) Means of identification.--The term `means of
identification' means any name or number that may be used,
alone or in conjunction with any other information, to
identify a specific individual, including any--
``(A) name, social security number, date of birth, official
State or government issued driver's license or identification
number, alien registration number, government passport
number, employer or taxpayer identification number;
``(B) unique biometric data, such as fingerprint, voice
print, retina or iris image, or other unique physical
representation;
``(C) unique electronic identification number, address, or
routing code; or
``(D) telecommunication identifying information or access
device (as defined in section 1029(e)).
``(4) Personal identification card.--The term `personal
identification card' means an identification document issued
by a State or local government solely for the purpose of
identification.
``(5) Produce.--The term `produce' includes alter,
authenticate, or assemble.
``(6) State.--The term `State' includes any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, and any other commonwealth, possession, or
territory of the United States.''.
(e) Attempt and Conspiracy.--Section 1028 of title 18,
United States Code, is amended by adding at the end the
following:
``(f) Attempt and Conspiracy.--Any person who attempts or
conspires to commit any offense under this section shall be
subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the
attempt or conspiracy.''.
(f) Rule of Construction.--Section 1028 of title 18, United
States Code, is amended by adding at the end the following:
``(g) Rule of Construction.--For purpose of subsection
(a)(7), a single identification document or false
identification document that contains 1 or more means of
identification shall be construed to be 1 means of
identification.''.
(g) Conforming Amendments.--Chapter 47 of title 18, United
States Code, is amended--
(1) in section 1028, by striking ``or attempts to do so,'';
(2) in the heading for section 1028, by adding ``and
information'' at the end; and
(3) in the analysis for the chapter, in the item relating
to section 1028, by adding ``and information'' at the end.
SEC. 3. RESTITUTION.
Section 3663A of title 18, United States Code, is amended--
(1) in subsection (c)(1)(A)--
(A) in clause (ii), by striking ``or'' at the end;
(B) in clause (iii), by striking ``and'' at the end and
inserting ``or''; and
(C) by adding at the end the following:
``(iv) an offense described in section 1028 (relating to
fraud and related activity in connection with means of
identification or identification documents); and''; and
(2) by adding at the end the following:
``(e) Fraud and Related Activity in Connection With
Identification Documents and Information.--Making restitution
to a victim under this section for an offense described in
section 1028 (relating to fraud and related activity in
connection with means of identification or identification
documents) may include payment for any costs, including
attorney fees, incurred by the victim, including any costs
incurred--
``(1) in clearing the credit history or credit rating of
the victim; or
``(2) in connection with any civil or administrative
proceeding to satisfy any debt, lien, or other obligation of
the victim arising as a result of the actions of the
defendant.''.
SEC. 4. AMENDMENT OF FEDERAL SENTENCING GUIDELINES FOR
OFFENSES UNDER SECTION 1028.
(a) In General.--Pursuant to its authority under section
994(p) of title 28, United States Code, the United States
Sentencing Commission shall review and amend the Federal
sentencing guidelines and the policy statements of the
Commission, as appropriate, to provide an appropriate penalty
for each offense under section 1028 of title 18, United
States Code, as amended by this Act.
(b) Factors for Consideration.--In carrying out subsection
(a), the United States Sentencing Commission shall consider,
with respect to each offense described in subsection (a)--
(1) the extent to which the number of victims (as defined
in section 3663A(a) of title 18, United States Code) involved
in the offense, including harm to reputation, inconvenience,
and other difficulties resulting from the offense, is an
adequate measure for establishing penalties under the Federal
sentencing guidelines;
(2) the number of means of identification, identification
documents, or false identification documents (as those terms
are defined in section 1028(d) of title 18, United States
Code, as amended by this Act) involved in the offense, is an
adequate measure for establishing penalties under the Federal
sentencing guidelines;
(3) the extent to which the value of the loss to any
individual caused by the offense is an adequate measure for
establishing penalties under the Federal sentencing
guidelines;
(4) the range of conduct covered by the offense;
(5) the extent to which sentencing enhancements within the
Federal sentencing guidelines and the court's authority to
sentence above the applicable guideline range are adequate to
ensure punishment at or near the maximum penalty for the most
egregious conduct covered by the offense;
(6) the extent to which Federal sentencing guidelines
sentences for the offense have been constrained by statutory
maximum penalties;
(7) the extent to which Federal sentencing guidelines for
the offense adequately achieve the purposes of sentencing set
forth in section 3553(a)(2) of title 18, United States Code;
and
(8) any other factor that the United States Sentencing
Commission considers to be appropriate.
SEC. 5. CENTRALIZED COMPLAINT AND CONSUMER EDUCATION SERVICE
FOR VICTIMS OF IDENTITY THEFT.
(a) In General.--Not later than 1 year after the date of
enactment of this Act, the Federal Trade Commission shall
establish procedures to--
(1) log and acknowledge the receipt of complaints by
individuals who certify that they have a reasonable belief
that 1 or more of their means of identification (as defined
in section 1028 of title 18, United States Code, as amended
by this Act) have been assumed, stolen, or otherwise
unlawfully acquired in violation of section 1028 of title 18,
United States Code, as amended by this Act;
(2) provide informational materials to individuals
described in paragraph (1); and
(3) refer complaints described in paragraph (1) to
appropriate entities, which may include referral to--
(A) the 3 major national consumer reporting agencies; and
(B) appropriate law enforcement agencies for potential law
enforcement action.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.
SEC. 6. TECHNICAL AMENDMENTS TO TITLE 18, UNITED STATES CODE.
(a) Technical Correction Relating to Criminal Forfeiture
Procedures.--Section 982(b)(1) of title 18, United States
Code, is amended to read as follows: ``(1) The forfeiture of
property under this section, including any seizure and
disposition of the property and any related judicial or
administrative proceeding, shall be governed by the
provisions of section 413 (other than subsection (d) of that
section) of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (21 U.S.C. 853).''.
(b) Economic Espionage and Theft of Trade Secrets as
Predicate Offenses For Wire Interception.--Section 2516(1)(a)
of title 18, United States Code, is amended by inserting
``chapter 90 (relating to protection of trade secrets),''
after ``to espionage),''.
[[Page S9503]]
Amendment No. 3480
(Purpose: To provide a substitute)
Mr. JEFFORDS. Mr. President, Senator Kyl has a substitute amendment
at the desk, and I ask for its consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Vermont [Mr. Jeffords], for Mr. Kyl, for
himself, Mr. Leahy, Mr. Hatch, Mrs. Feinstein, Mr. DeWine,
Mr. D'Amato, Mr. Grassley, Mr. Abraham, Mr. Faircloth, Mr.
Harkin, Mr. Warner, Mr. Murkowski and Mr. Robb, proposes an
amendment numbered 3480.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. KYL. Mr. President, the purpose of this bill, ``The Identity
Theft and Assumption Deterrence Act'', is to address one of the fastest
growing crimes in America, identity theft. Losses related to identity
theft have nearly doubled in the last two years. Today, 95% of
financial crimes arrests involve identity theft. Trans Union, one of
the country's three major credit bureaus, says calls to its fraud
division have risen from 3,000 a month in 1992 to nearly 43,000 a month
this year. This is more than a troubling trend. Indeed, with increasing
frequency, criminals--sometimes part of an international criminal
syndicate--are misappropriating law-abiding citizens' identifying
information such as names, birth dates, and social security numbers.
And while the results of the theft of identification information can be
devastating for the victims, often costing a citizen thousands of
dollars to clear his credit or good name, today the law recognizes
neither the victim nor the crime.
The bill, as reported unanimously by the Judiciary Committee, does
both. It recognizes the crime by making it unlawful to steal personal
information and enhancing penalties against identity thiefs. It
recognizes victims by giving them the ability to seek restitution for
all costs involved in restoring lost credit and reputation. In
addition, my bill provides real time relief to victims by directing the
Federal Trade Commission to set up a centralized complaint center to
provide information to consumers, refer cases to law enforcement,
officially acknowledge complaints, and relay that acknowledgment to
credit bureaus.
And while section 1028 of title 18 currently prohibits the production
and possession of false identification documents, it does not make it
illegal to steal or possess another person's personal information. By
amending section 1028, this bill will help current law keep pace with
criminals' exploitation of information technology.
The substitute I am offering today with Senators Leahy, Hatch,
Feinstein along with Senators DeWine, D'Amato, Grassley, Abraham,
Faircloth, Harkin, Warner, Murkowski, and Robb reflects two small but
important improvements over the bill reported out of committee. Both
changes were recommended by the Department of Justice. First, the
substitute further refines the scope of the offense and applicable
punishments by deleting the term ``possession'' from the offense and
penalty sections of the reported bill. As explained by the Department,
the term ``possession'' is overbroad as applied to identity theft
offense added to the criminal code by this legislation. The second
change simply adds standard forfeiture procedure to the existing
criminal forfeiture penalty in the reported bill. Without a procedure
attending the forfeiture penalty, the Department considers this penalty
unenforceable.
There are numerous private entities and federal law enforcement
agencies that supported and contributed to this bill through its
redraftings to its present form that I would like to thank.
On the private side, thank yous go to the American Bankers
Association, the Associated Credit Bureaus, Visa and Mastercard, the
American Society of Industrial Services, and the United States Public
Interest Research Group.
Public agencies which lent important support to this legislative
effort are the: Federal Bureau of Investigation, Federal Trade
Commission, and the U.S. Postal Inspectors. Special thanks goes to the
Secret Service and the Department of Justice for the great deal of time
and effort they have expended to help make this bill the well drafted
piece of legislation it is today.
In conclusion, I also thank Senators Leahy, Hatch and Feinstein for
lending their valuable support and input to this bill.
Mr. LEAHY. Mr. President, I am pleased that the Senate today is
adopting the Kyl-Leahy substitute amendment to S. 512, the ``Identity
Theft and Assumption Deterrence Act.''
Protecting the privacy of our personal information is a challenge,
especially in this information age. Every time we obtain or use a
credit card, place a toll-free phone call, surf the Internet, get a
driver's license or are featured in Who's Who, we are leaving virtual
pieces of ourselves in the form of personal information, which can be
used without our consent or even our knowledge. Too frequently,
criminals are getting hold of this information and using the personal
information of innocent individuals to carry out other crimes. Indeed,
U.S. News & World Report has called identity theft ``a crime of the
90's''.
The consequences for the victims of identity theft can be severe.
They can have their credit ratings ruined and be unable to get credit
cards, student loans, or mortgages. They can be hounded by creditors or
collection agencies to repay debts they never incurred, but were
obtained in their name, at their address, with their social security
number or driver's license number. It can take months or even years,
and agonizing effort, to clear their good names and correct their
credit histories. I understand that, in some instances, victims of
identity theft have even been arrested for crimes they never committed
when the actual perpetrators provided law enforcement officials with
assumed names.
The new legislation provides important remedies for victims of
identity theft. Specifically, it makes clear that these victims are
entitled to restitution, including payment for any costs and attorney's
fees in clearing up their credit histories and having to engage in any
civil or administrative proceedings to satisfy debts, liens or other
obligations resulting from a defendant's theft of their identity. In
addition, the bill directs the Federal Trade Commission to keep track
of consumer complaints of identity theft and provide information to
victims of this crime on how to deal with its aftermath.
This is an important bill on an issue that has caused harm to many
Americans. It has come a long way from its original formulation, which
would have made it an offense, subject to 15 years' imprisonment, to
possess ``with intent to deceive'' identity information issued to
another person. I was concerned that the scope of the proposed offense
in the bill as introduced would have resulted in the federalization of
innumerable state and local offenses, such as the status offenses of
underage teenagers using fake ID cards to gain entrance to bars or to
buy cigarettes, or even the use of a borrowed ID card without any
illegal purpose. This problem, and others, were addressed in the Kyl-
Leahy substitute that was reported out of the Committee and further
refined in the substitute amendment the Senate considers today.
Since Committee consideration of this bill, we have continued to
consult with the Department of Justice to improve the bill in several
ways. Most significantly, the Kyl-Leahy substitute amendment
appropriately limits the scope of the new offense governing the illegal
transfer or use of another person's ``means of identification'' to
exclude ``possession.'' This change ensures that the bill does not
inadvertently subject innocuous conduct to the risk of serious federal
criminal liability. For example, with this change, the bill would no
longer raise the possibility of criminalizing the mere possession of
another person's name in an address book or Rolodex, when coupled with
some sort of bad intent.
At the same time, the substitute restores the nuanced penalty
structure of section 1028, so that it continues to treat most other
possessory offenses involving identification documents and document-
making implements as misdemeanors. Thus, in the substitute, the use or
transfer of 1 or more means of
[[Page S9504]]
identification that results in the perpetrator receiving anything of
value aggregating $1,000 or more over a 1-year period, would carry a
penalty of a fine or up to 15 years' imprisonment, or both. The use or
transfer of another person's means of identification that does not
satisfy those monetary and time period requirements, would carry a
penalty of a fine and up to three years' imprisonment, or both.
Finally, again with the support of the Department of Justice, we
specified the forfeiture procedure to be used in connection with
offenses under section 1028. The bill as reported created a forfeiture
penalty for these offenses; the addition of a procedure simply
clarifies how that penalty is to be enforced.
I am glad that Senator Kyl and I were able to join forces to craft
legislation that both punishes the perpetrators of identity theft and
helps the victims of this crime.
Mr. HATCH. Mr. President, it is with pleasure that I rise today in
support of S. 512, the ``Identity Theft and Assumption Deterrence Act
of 1998.'' This measure has bipartisan support, and I am pleased to be
an original co-sponsor along with Senators Leahy, Feinstein, DeWine,
D'Amato, Grassley, Abraham, Faircloth, Harkin, Warner, Murkowski and
Robb.
Identity information theft is a crime that destroys the lives of
thousands of innocent people each year. It occurs when an imposter, who
has falsified or stolen personal information from another individual,
uses the information to make financial transactions or conduct personal
business in the name of another. This heinous crime often leaves
victims with mountains of debt, ruins their credit history, and makes
it difficult for the individuals to obtain employment. In short, it
virtually takes over the lives of innocent citizens who find themselves
trying to untangle an endless trail of obligations they did not make or
actions they did not commit.
Many of you know individuals who have been victims of this crime.
These are people whose lives have been destroyed because a con-artist
gained access to and used their personal data, such as their address,
date of birth, mother's maiden name, or social security number. This is
information that you and I are asked to verify every day in our
society. Once that information is obtained, these con-artists use it to
open bank and credit card accounts and to obtain bank and mortgage
loans. These fake business and personal commitments and obligations can
ruin a lifetime of hard work.
Currently, the applicable federal statute, Title 18 United States
Code Section 1028, only criminalizes the possession, transfer, or
production of identity documents. In other words, you have to catch the
culprit with the actual documents in order to bring a prosecution for
fraud. Obviously, such criminals are not always going to keep these
documents once they have acquired the information they need. Many times
criminals simply misappropriate the information itself to facilitate
their criminal activity.
As there is no specific statute criminalizing the theft of the
information, when and if these criminals are prosecuted, law
enforcement must pursue more indirect charges such as check fraud,
credit card fraud, mail fraud, wire fraud, or money laundering.
Unfortunately, these statutes do little to compensate the victim or
address the horror suffered by the individual whose life has been
invaded. Often these general criminal statutes treat only affected
banks, credit bureaus, and other financial institutions as the victim,
leaving the primary victim, the innocent person, without recourse to
reclaim his or her life and identity.
S. 512 recognizes not only that it is a crime to steal personal
information, and enhances penalties for such crimes, but it also
recognizes the person, whose information has been stolen, as the real
victim. Moreover, it gives the victim the ability to seek restitution
and relief.
I believe this bill to be an important piece of legislation. It is
supported by federal law enforcement agencies, credit bureaus, banking
associations, and other private entities. I urge all of my colleagues
to join us and support the passage of this bill.
Mrs. FEINSTEIN. Mr. President, I am proud to be an original cosponsor
of the substitute version of S. 512, The Identity Theft and Assumption
Deterrence Act of 1998, which the Senate is considering today.
On May 20, the Senate Judiciary Committee, Subcommittee on
Technology, Terrorism, and Government Information, on which I serve as
Ranking Member, heard from victims of identity theft from both
Subcommittee Chairman Kyl's and my home states. The victims told
cautionary tales of lives suddenly, and without warning, turned upside
down by the crime of identity theft.
Theirs are not isolated stories. The Secret Service last year made
nearly 9,500 identity theft-related arrests, totaling three-quarters of
a billion dollars in losses to individual victims and financial
institutions. Such losses have nearly doubled in the last two years,
and no end to the trend is in sight. In one out of every ten of these
cases, identity theft is used to violate immigration laws, to illegally
enter the country or to flee across international borders.
It used to be that identity theft required wading through dumpsters
for discarded credit card receipts. Today, with a few keystrokes, a
computer-savvy criminal can hack into databases and lift credit card
numbers, social security numbers, and a myriad of personal information.
The Identity Theft and Assumption Deterrence Act does two critical
things in the war on identity theft: it gives prosecutors the tools
they need, and it recognizes that identity theft victimizes
individuals.
Prosecutors tell us that they lack effective tools to prosecute
identity theft and to make victims whole. S. 512 has been drafted in
consultation with prosecutors to give them the tools they need. S. 512
does so in a number of important ways:
It updates pre-computer age laws to criminalize electronic identity
theft;
It stiffens penalties and adds sentencing enhancements that
prosecutors tell us they need to effectively prosecute crimes; and
It allows law enforcement agents to seize equipment used to
facilitate identity theft crimes.
Earlier this month, the Senate Judiciary Committee passed the
Victim's Rights Amendment to the Constitution, of which I was also
proud to be an original cosponsor. Similarly, S. 512 for the first time
recognizes that individuals, and not just credit card companies, are
victims of identity theft, and it provides them with proper
restitution. It protects victims rights, fully recognizing individuals
as victims of identity theft, establishing remedies and procedures for
such victims, and requiring restitution for the individual victim.
I am proud to be an original cosponsor of this legislation, and I
urge my Senate colleagues to pass it.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the
amendment be agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 3480) was agreed to.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the
committee amendment, as amended, be agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee amendment, as amended, was agreed to.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the bill be
considered read a third time and passed, as amended; that the motion to
reconsider be laid upon the table; and that any statements relating to
the bill appear at the appropriate place in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 512), as amended, was considered read the third time and
passed.
____________________