[Congressional Record Volume 150, Number 88 (Wednesday, June 23, 2004)]
[House]
[Pages H4808-H4811]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IDENTITY THEFT PENALTY ENHANCEMENT ACT
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 1731) to amend title 18, United States Code, to
establish penalties for aggravated identity theft, and for other
purposes, as amended.
The Clerk read as follows:
H.R. 1731
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Identity Theft Penalty
Enhancement Act''.
SEC. 2. AGGRAVATED IDENTITY THEFT.
(a) In General.--Chapter 47 of title 18, United States
Code, is amended by adding after section 1028, the following:
``Sec. 1028A. Aggravated identity theft
``(a) Offenses.--
``(1) In general.--Whoever, during and in relation to any
felony violation enumerated in subsection (c), knowingly
transfers, possesses, or uses, without lawful authority, a
means of identification of another person shall, in addition
to the punishment provided for such felony, be sentenced to a
term of imprisonment of 2 years.
``(2) Terrorism offense.--Whoever, during and in relation
to any felony violation enumerated in section 2332b(g)(5)(B),
knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person or a
false identification document shall, in addition to the
punishment provided for such felony, be sentenced to a term
of imprisonment of 5 years.
``(b) Consecutive Sentence.--Notwithstanding any other
provision of law--
``(1) a court shall not place on probation any person
convicted of a violation of this section;
``(2) except as provided in paragraph (4), no term of
imprisonment imposed on a person under this section shall run
concurrently with any other term of imprisonment imposed on
the person under any other provision of law, including any
term of imprisonment imposed for the felony during which the
means of identification was transferred, possessed, or used;
``(3) in determining any term of imprisonment to be imposed
for the felony during which the means of identification was
transferred, possessed, or used, a court shall not in any way
reduce the term to be imposed for such crime so as to
compensate for, or otherwise take into account, any separate
term of imprisonment imposed or to be imposed for a violation
of this section; and
``(4) a term of imprisonment imposed on a person for a
violation of this section may, in the discretion of the
court, run concurrently, in whole or in part, only with
another term of imprisonment that is imposed by the court at
the same time on that person for an additional violation of
this section, provided that such discretion shall be
exercised in accordance with any applicable guidelines and
policy statements issued by the Sentencing Commission
pursuant to section 994 of title 28.
``(c) Definition.--For purposes of this section, the term
`felony violation enumerated in subsection (c)' means any
offense that is a felony violation of--
``(1) section 641 (relating to theft of public money,
property, or rewards), section 656 (relating to theft,
embezzlement, or misapplication by bank officer or employee),
or section 664 (relating to theft from employee benefit
plans);
``(2) section 911 (relating to false personation of
citizenship);
``(3) section 922(a)(6) (relating to false statements in
connection with the acquisition of a firearm);
``(4) any provision contained in this chapter (relating to
fraud and false statements), other than this section or
section 1028(a)(7);
``(5) any provision contained in chapter 63 (relating to
mail, bank, and wire fraud);
``(6) any provision contained in chapter 69 (relating to
nationality and citizenship);
``(7) any provision contained in chapter 75 (relating to
passports and visas);
``(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C.
6823) (relating to obtaining customer information by false
pretenses);
``(9) section 243 or 266 of the Immigration and Nationality
Act (8 U.S.C. 1253 and 1306) (relating to willfully failing
to leave the United States after deportation and creating a
counterfeit alien registration card);
``(10) any provision contained in chapter 8 of title II of
the Immigration and Nationality Act
[[Page H4809]]
(8 U.S.C. 1321 et seq.) (relating to various immigration
offenses); or
``(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the
Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a-
7b(a), and 1383a) (relating to false statements relating to
programs under the Act).''.
(b) Amendment to Chapter Analysis.--The table of sections
for chapter 47 of title 18, United States Code, is amended by
inserting after the item relating to section 1028 the
following new item:
``1028A. Aggravated identity theft.''.
(c) Application of Definitions From Section 1028.--Section
1028(d) of title 18, United States Code, is amended by
inserting ``and section 1028A'' after ``In this section''.
SEC. 3. AMENDMENTS TO EXISTING IDENTITY THEFT PROHIBITION.
Section 1028 of title 18, United States Code, is amended--
(1) in subsection (a)(7)--
(A) by striking ``transfers'' and inserting ``transfers,
possesses,''; and
(B) by striking ``abet,'' and inserting ``abet, or in
connection with,'';
(2) in subsection (b)(1)(D), by striking ``transfer'' and
inserting ``transfer, possession,'';
(3) in subsection (b)(2), by striking ``three years'' and
inserting ``5 years''; and
(4) in subsection (b)(4), by inserting after ``facilitate''
the following: ``an act of domestic terrorism (as defined
under section 2331(5) of this title) or''.
SEC. 4. AGGREGATION OF VALUE FOR PURPOSES OF SECTION 641.
The penultimate paragraph of section 641 of title 18 of the
United States Code is amended by inserting ``in the
aggregate, combining amounts from all the counts for which
the defendant is convicted in a single case,'' after ``value
of such property'' .
SEC. 5. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION.
(a) In General.--Pursuant to its authority under section
994(p) of title 28, United States Code, and in accordance
with this section, the United States Sentencing Commission
shall review and amend its guidelines and its policy
statements to ensure that the guideline offense levels and
enhancements appropriately punish identity theft offenses
involving an abuse of position.
(b) Requirements.--In carrying out this section, the United
States Sentencing Commission shall do the following:
(1) Amend U.S.S.G. section 3B1.3 (Abuse of Position of
Trust of Use of Special Skill) to apply to and punish
offenses in which the defendant exceeds or abuses the
authority of his or her position in order to obtain
unlawfully or use without authority any means of
identification, as defined section 1028(d)(4) of title 18,
United States Code.
(2) Ensure reasonable consistency with other relevant
directives, other sentencing guidelines, and statutory
provisions.
(3) Make any necessary and conforming changes to the
sentencing guidelines.
(4) Ensure that the guidelines adequately meet the purposes
of sentencing set forth in section 3553(a)(2) of title 18,
United States Code.
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
In addition to any other sums authorized to be appropriated
for this purpose, there is authorized to be appropriated to
the Department of Justice, for the investigation and
prosecution of identity theft and related credit card and
other fraud cases constituting felony violations of law,
$2,000,000 for fiscal year 2005 and $2,000,000 for each of
the 4 succeeding fiscal years.
The SPEAKER pro tempore. Pursuant to the rule the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from Virginia (Mr.
Scott) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 1731, currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, identity theft and identity fraud are terms used to
refer to all types of crime in which someone wrongfully obtains and
uses another person's personal data in some way that involves fraud or
deception, typically for economic or other gain including immigration
benefits.
The Federal Trade Commission received 161,819 complaints of someone
using another's information in 2002. In 2003 the FTC performed a random
sampling of households. The results from the survey suggest that almost
10 million Americans were the victim of some form of ID theft within
the last year, which means that despite all of the attention to this
type of crime since September 11, 2001, the incidence of this crime is
increasing.
As border security and international cooperation increases to combat
terrorism, al Qaeda and other terrorist organizations increasingly turn
to stolen identities to hide themselves from law enforcement. For
example, according to testimony from the Inspector General of the
Social Security Administration, five Social Security numbers associated
with some of the September 11 terrorists appeared to be counterfeit.
One was assigned to a child and four of the terrorists were associated
with multiple Social Security numbers.
{time} 1615
Since September 11, 2001, Federal and State officials have taken
notice of this crime because of the potential threat to security. But
the cost to the consumer and corporations is equally alarming. The FTC
estimates that loss to business and financial institutions from
identity theft to be $47.6 billion per year. The costs to individual
consumers is estimated to be approximately $5 billion a year.
As this crime increases, we must find new ways to combat it. Web
sites developed by the FTC and consumer groups encourage consumers to
protect themselves by shredding mail and keeping a close watch over
their credit report. Yet the FTC statistics suggest that identity
thieves are obtaining an individual's personal information for misuse
not only through ``dumpster diving'' but also through accessing
information that was originally collected for an authorized purpose, a
so-called ``insider threat.''
In one such case, U.S. attorneys charged a 33-year-old customer
service representative from Long Island, New York with identity theft
and fraud. This individual was using his position at a company that
provided computer services to banks and lending companies to access
personal consumer credit information from three credit reporting
agencies. The scheme allowed him to access personal information of over
30,000 victims.
The insider threat from identity theft and identity fraud is a threat
to personal security as well as national security. The U.S. Attorney in
Atlanta charged 28 people as a part of a fraud ring to supply over
1,900 individuals with fraudulent Social Security cards. The cards were
supplied by a Social Security Administration clerk in exchange for
$70,000 in payoffs.
Under current law, many identity thieves are receiving short terms of
imprisonment or probation; however, many of these thieves will use
false identities to commit much more serious crimes. Thus H.R. 1731
provides enhanced penalties for persons who steal identities to commit
terrorist acts, immigration violations, firearms offenses, and other
serious crimes. The bill would amend current law to impose a higher
maximum penalty for identity theft used to facilitate acts of
terrorism.
This legislation will allow prosecutors to identify identity thieves
who steal an identity, sometimes hundreds or even thousands of
identities, for purposes of committing one or more crimes. Importantly,
it will facilitate the prosecution of terrorists who steal identities
with the intent of subsequently committing terrorists acts. It also
directs the Sentencing Commission to apply the guidelines for abuse of
trust to an insider who uses his position to steal identities.
I support this common sense legislation and urge my colleagues to
join me in its passage.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in opposition to H.R. 1731. Although I agree with
the purpose of the bill, my position is based on the reliance in the
bill of mandatory minimum sentencing. By adding mandatory minimum
sentencing and denying probation and concurrent sentences, the bill
imposes unnecessary and unproductive restrictions on the ability of the
Sentencing Commission and judges, in individual cases, to assure a
rational and just system of sentencing as a whole and for individuals.
The notion that Congress is in a better position to determine at the
front end what the sentence has to be for an individual case than the
judge who has heard the case and applies guidelines established by the
sentencing professionals not only defeats the rational
[[Page H4810]]
sentencing system that Congress adopted but also makes no sense in our
separation of powers scheme of governance. Moreover, the notion of
mandating a 2-year or 5-year sentence to someone who is already willing
to risk a 15-year sentence is not likely to add any deterrence.
Mandatory sentences do not work. They have been studied extensively
and have been shown to be ineffective in preventing crime. They distort
the sentencing process. They discriminate against minorities in their
application, and they waste money. In a study report entitled
``Mandatory Drug Sentences: Throwing Away the Key or the Taxpayers
Money?'' The Rand Corporation concluded that mandatory minimum
sentences were less effective than either discretionary sentencing or
drug treatment in reducing drug-related crime and far more costly than
either. The Judicial Conference of the United States has reiterated its
opposition to mandatory minimum sentencing over a dozen times to
Congress, noting that though sentences ``severely distort and damage
the Federal sentencing system . . . undermine the Sentencing Guideline
regimen'' established by Congress to promote fairness and
proportionality,'' and ``destroy honesty in sentencing by encouraging
charge and fact plea bargains.'' The U.S. Sentencing Commission
indicated its opposition to the Senate bill, which is virtually
identical to this bill, for similar reasons.
Both the Judicial Center in its study report entitled ``The General
Effects of Mandatory Minimum Prison Terms: a Longitudinal Study of
Federal Sentences Imposed'' and the United States Sentencing Commission
in its study entitled ``Mandatory Minimum Penalties in the Federal
Criminal Justice System'' found that minorities were substantially more
likely than whites under comparable circumstances to receive mandatory
minimum sentences. The Sentencing Commission also reflected that
mandatory minimum sentences increased the disparity in sentencing of
like offenders with no evidence that mandatory minimum sentencing had
any more crime-reduction impact than discretionary sentences.
Chief Justice Rehnquist has spoken often and loudly about these
wasteful cost increases. One quote attributed to him says: ``Mandatory
minimums are perhaps a good example of the law of unintended
consequences.''
Mr. Speaker, there is one good part of the bill, and that is an
authorization for funding to investigate consumer credit card fraud
cases. I introduced in the committee a newspaper report of an identity
theft case in which a Senator from New Mexico, Senator Domenici, was
the victim. It involved about $800 worth of fraudulent credit card
purchases. We checked with the FBI. No action is being taken on this
case because of limitations on resources. That is not surprising
because these cases often involve stolen credit cards with the card
stolen in one jurisdiction, purchases made in another jurisdiction, a
suspect living entirely somewhere else, and so the local place cannot
effectively investigate these cases. They can be solved because there
is usually a paper trail leading right back to the suspect, but it
takes resources. Mandatory minimum sentences will do nothing in cases
that are not investigated and not prosecuted, and this bill does
provide funds to investigate and prosecute cases such as Senator
Domenici's.
Unfortunately, Mr. Speaker, because this bill primarily focuses on
the narrow piece of the identity theft problem, much of which has
nothing to do with consumer identity theft, through the discredited and
ineffective and costly mechanism of mandatory minimum sentencing, I
cannot support the bill.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman
from Texas (Mr. Carter).
Mr. CARTER. Mr. Speaker, I am pleased to be the author and sponsor of
H.R. 1731, the Identity Theft Penalty Enhancement Act, and appreciate
the support of the gentleman from Wisconsin (Chairman Sensenbrenner)
and the fact that he advanced this important legislation. I would also
like to thank the gentleman from California (Mr. Schiff) for his
support as the lead co-sponsor on this bill.
This legislation addresses the growing occurrences of identity theft.
It will facilitate the prosecution of criminals who steal identities in
order to commit felonies.
Felonies arising from identity theft are a very serious problem. Four
years in a row, the Federal Trade Commission has reported identity
theft as the number one consumer-reported complaint filed with the
Commission. More than 200,000 identity theft complaints were reported
in 2003.
Mr. Speaker, unfortunately, the mentions of ID theft are becoming all
too commonplace. Just recently, last month, I believe, two brothers
were convicted in Dallas of running an ID theft ring to buy luxury cars
and obtain bank loans worth over $1 million, sometimes using the names
of dead people. In Collin County, Texas, a former Texas driver's
license bureau clerk pleaded guilty to selling ID cards to illegal
immigrants using stolen information from immigration papers.
Just as concerning, the trafficking of identities aids terrorist
crimes. Terrorists can move more freely in the United States with
illicit IDs, credit cards, and other documentation. Insufficient
legislation and prosecution has allowed a situation to arise where
identities are easy to steal without fear of reprisal. Last year, the
U.S. Department of Homeland Security warned that would-be terrorists
may try to use stolen IDs, uniforms, and vehicles to enter sensitive
facilities in order to carry out an attack.
The Identity Theft Penalty Enhancement Act gives prosecutors greater
power in convicting and sentencing identity theft. First, it creates a
new separate crime of aggravated identity theft for any person who uses
the identity of another person to commit certain felonies. It provides
a separate sentence of 2 years for most felonies and 5 years for
terror-related felonies is mandatory. It would run consecutively to any
other sentences.
Second, the bill lessens the burden prosecutors face when seeking
convictions of aggravated identity theft. Under this bill, if a thief
uses the stolen identity in connection with another Federal crime and
the intent of the underlying Federal crime is proven, the prosecutor
may not need to prove the intent to use the false identity in a crime.
H.R. 1731 addresses the improper receipt that Social Security,
Medicare, disability, veterans and other benefits by misuse of
illegally obtained Social Security numbers. We have a responsibility to
protect the benefit programs of the Social Security Administration from
these identity thieves.
This legislation also addresses a prevalent mode of identity theft
which is committed by insiders of organizations who illegally use or
transfer individuals' identifying information which has been entrusted
to them. This is an increasing problem which we must protect all our
consumers from. Last year Texas witnessed an example of this when a
University of Texas student who was trusted with access to the
University's database stole 55,000 Social Security numbers, including
one of my staffers.
A recent report by researchers at Michigan State University estimates
about half of all identity crimes were the result of personal
information being stolen from corporate databases. This legislation
directs the U.S. Sentencing Commission to amend its guidelines to
appropriately punish ID theft offenses involving the abuse of a
position.
I urge my fellow colleagues to favorably support H.R. 1731. And,
again, I thank the chairman for his support and the hard work of his
staff on behalf of this legislation.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 5 minutes to the
gentleman from California (Mr. Schiff), a distinguished member of the
Committee on the Judiciary and a former assistant U.S. Attorney.
Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding me this
time.
I also want to thank the gentleman from Wisconsin (Mr.
Sensenbrenner), our distinguished chairman; and the gentleman from
North Carolina (Mr. Coble), subcommittee Chair, for moving this
legislation through the Committee on the Judiciary and onto the House
floor.
I joined the gentleman from Texas (Mr. Carter) in introducing this
legislation in response to the plague of
[[Page H4811]]
identity theft that has beset the country. Identity theft has now
topped the list of consumer complaints filed with the FTC for the last
4 years in a row, impacting millions of Americans and costing consumers
and businesses billions of dollars.
My home State of California ranks number three in the number of
victims of identity theft per capita with over 37,000 complaints
reported by consumers, costing over $40 million just last year alone.
Nationally, California cities crowd the top ten list of metropolitan
areas with the highest per capita rates of identity theft reported. The
Los Angeles-Long Beach metropolitan area, which includes my district,
is particularly prone to such crimes and ranks number two nationally
with over 13,000 victims.
A victim of identity theft usually spends a year and a half working
to restore his or her identity and good name. Many of my constituents
have contacted me. Many of my colleagues have heard similar urging that
Congress act quickly and effectively to crack down on this growing
epidemic. For this reason, I joined the gentleman from Texas (Mr.
Carter) in introducing the Identity Theft Penalty Enhancement Act,
legislation that will make it easier for prosecutors to target those
identity thieves who steal an identity for the purpose of committing
other serious crimes. The bill will stiffen penalties to deter such
offenses and strengthen the ability of law enforcement to go after
identity thieves and prove their case.
{time} 1430
Our legislation also makes changes to close a number of gaps
identified in current Federal law. Identical legislation was introduced
by Senators Feinstein and Kyl, passing by unanimous consent in the
Senate in January of last year. H.R. 1731 has also been endorsed by the
Justice Department and the Federal Trade Commission.
I am very mindful of the reservations that my colleague, the
gentleman from Virginia (Mr. Scott) has expressed about mandatory
minimums in general, and I share those concerns about the practice of
mandatory minimums. I think my difference with the gentleman from
Virginia (Mr. Scott) comes in where there are appropriate exceptions.
In this case, I believe there is an appropriate exception, and I
believe the gentleman from Virginia (Mr. Scott) believes this is not an
appropriate case for an exception. But let me outline why I believe
that this is an appropriate exceptional case.
First, we have the epidemic nature of the crime, which rather than
abate has merely grown and proliferated over the last several years.
Second, because the enhanced penalties are reserved for aggravated
identity theft, they must be committed in connection with other serious
felony offenses. But since the underlying offense and the identity
theft are generally merged for sentencing purposes, prosecutors have
little incentive to charge identity theft. This current sentencing
structure and practice is flawed because it does not reflect the impact
on the victim, in addition to the impact and loss to the financial
institution.
I was pleased to work with the gentleman from Texas (Mr. Carter) as
well as sponsors from the other body in order to make some additional
improvements to the bill in committee. These improvements respond to
specific concerns that were raised by the Social Security
Administration. In addition, we respond to the ever-growing problem of
insider theft. A peer review study will be coming out later this year
that will show perhaps as much as 70 percent of identity theft cases
are facilitated through the workplace.
Homeland security concerns have certainly highlighted the need to
protect against identity theft, given the potential ease with which a
terrorist can assimilate to or move about in our society with stolen
identity documents.
In order total protect the good credit of hard-working Americans and
their reputations and to protect the homeland, the time to strengthen
the law is now. I also support the effort of the gentleman from
Virginia (Mr. Scott) to increase the resources for the enforcement of
these laws. Merely increasing the deterrent value is not enough if the
resources lag behind.
I want to thank my colleague for all his efforts along those lines,
and again want to thank my colleagues, Mr. Speaker, for acting on this
piece of legislation, and urge their support.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I thank the gentleman from California for his remarks
and also for his hard work on this legislation. As I have indicated, I
agree with the purpose of the legislation. However, I disagree with the
use of the mandatory minimums.
With mandatory minimums, low level offenders frequently get too much
time. The more serious violators often get too little time. That is why
we have the Sentencing Commission, that is why we have judges who will
hear the evidence and impose the appropriate punishment in the
individual case.
Mr. Speaker, I would hope that we would reject the legislation so
that we could eliminate the mandatory minimums.
Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, the only opposition to this bill appears to come from
those who are opposed in principle to mandatory minimum sentences. I
think that opponents of mandatory minimums would have a much more
compelling case if they could assure Congress that the judges are
faithfully following the sentencing guidelines that were passed 20
years ago at the time when Congress abolished parole and passed the law
establishing determinant sentencing. Sadly, I am afraid the evidence
does not support that.
The most disturbing recent example of judges deciding to ignore the
sentencing guideline's recommendations comes from Supreme Court justice
Anthony Kennedy's testimony before a House appropriations subcommittee
in which he stated that judges who depart downward are courageous, and
the judges should not have to blindly follow unjust guidelines.
Now, Congress creates crimes, Congress prescribes the penalties for
crimes, and the reason that there were sentencing guidelines passed to
begin with was to prevent both prosecutors and defense counsel from
shopping around for judges to try cases that met with their own
particular views on what the sentence should be, should the defendant
be convicted.
Well, because of statements like Justice Kennedy's, we now have to
have mandatory minimums when we feel the crime is important enough that
somebody should at least spend a day in jail or more. That is why there
are mandatory minimums in the bill that is before us that deals with
identity theft and identity fraud.
I would urge the House to reject the argument that mandatory minimums
are bad per se. We need a mandatory minimum in this burgeoning crime. I
urge support of this bill.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Hastings of Washington). The question is
on the motion offered by the gentleman from Wisconsin (Mr.
Sensenbrenner) that the House suspend the rules and pass the bill, H.R.
1731, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________