Distorting criminal offences has always been a temptation when the law does not fit exactly the fact. Except that criminal law is bound by the principle of strict interpretation and reasoning by analogy should not be allowed. It is thus reassuring to see that the use of a fake identity created from “scratch” does not fit the offence of ID fraud as defined in the US. This is not surprising given the definition of the offence:
- “knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law;”
- Identity Theft and Assumption Deterrence Act of 1998, amending Section 1028(a) of title 18, United States Code
And yet the US prosecution managed to claim a different interpretation up to the Supreme Court. What a waste! “Supreme Court Tells Gov’t It Can’t Use ID Fraud Laws Against Illegal Immigrants” (TechDirt, 5 May 2009)
The use of a fake identity, again fictional rather than of a real person, let to another story, as sad and distressing as the previous albeit for different reasons. This time, the fake identity led to the recipient of the ‘friendship’ to commit suicide. The law is indeed powerless as so far ID fraud has been built on the use of a real identity but by another person.
“Congressional Rep Wants To Put Internet Trolls In Jail” (TechDirt, 6 May 2009)
THe two cases certainly raise issues of the adaptability of criminal law. Fraud and ID fraud are offences targeting the use of real identity with the aim for fraud to obtain money. Phishing is just an adaptation to the internet of the traditional means to commit fraud. (see “Facebook fends off two days of phishing attacks“, ZDnet.co.uk, 1 May 2009)
The protection of a person’s feelings with the use of this false identity was never taken into consideration. Should it with the internet? I would be reluctant to affirm so. The two cases reported here revolve around either immigration issues or the use of internet by children or vulnerable people. The latter is a matter of education: not to take at face value what is said online and understanding that anybody can invent an identity purely fictional like in games or Second Life.