The law’s reporting and venue requirements reflect the ubiquitous nature of identity theft. While incident reporting and venue are typically tied to the location of the crime, the identity theft law allows venue and reporting in the jurisdiction where the victim resides. This aids the victim whose perpetrator committed the crime in another state or over the Internet. The limitations period for prosecuting identity theft and phishing is three years from the commission of the offense, excluding any period of time during which the defendant does not reside in Minnesota. Minn. Stat. § 628.26.
Identity Theft Reporting and Prosecution
A person who has learned or reasonably suspects that he or she is a direct victim of identity theft may report the crime in the jurisdiction where the person resides, regardless of where the crime occurred. Law enforcement must prepare a police report and provide the complainant with a copy of the report. The agency may then begin an investigation or refer the report to another jurisdiction. Minn. Stat. § 609.527, subd. 5.
An offense may be prosecuted in either: (1) the county where the offense occurred, or (2) the county of residence or place of business of the direct or indirect victim. If the same person commits two or more offenses in two or more counties, the accused may be prosecuted for all the offenses in any of the counties where an offense occurred. The value of the money or property, as well as the number of direct or indirect victims, may be aggregated within any six-month period. Minn. Stat. § 609.527, subds. 6 and 7.
In the case of phishing schemes, the venue is also located in the county of residence of the person whose identity was obtained or sought. This provision was included because in a phishing scheme, a person’s identity might not be taken; it is the scheme to deceive a person into revealing personal information that is prosecuted. Minn. Stat. § 609.527, subd. 6.
Identity Theft Victims
A primary concern of identity theft legislation involves protecting and assisting victims. Identity theft often leaves victims in a quandary. A victim may need to spend time and resources restoring credit, closing and re-opening accounts, filling out forms, or attending court proceedings. Victims may also lose their ability to obtain credit, cash checks, or make purchases. In insidious cases, one could be arrested for crimes committed by an identity thief. The following provisions assist victims in recovering from identity theft and help curb further misuse of their identities.
Crime Victims’ Rights
The law provides that a victim of identity theft is considered a victim for all purposes, including any rights that accrue under chapter 611A (Crime Victims: Rights, Programs, and Agencies).4 Examples of victims’ rights under this chapter include restitution, privacy rights (a victim may request that his or her identity and address remain confidential), notification rights (notice of a plea agreement, final disposition of the case, or defendant’s appeal), and the right to present an impact statement in court. Minn. Stat. § 609.527, subd. 4(a).
Mandatory Restitution and Free Court Documents
Under the identity theft law, all direct victims are entitled to free certified court documents and mandatory restitution in an amount not less than $1,000. Mandatory restitution allows victims to seek compensation from a defendant without providing detailed documentation of losses incurred (which is otherwise required under chapter 611A). This provision was added to address the problem that victims may have in accounting for intangible losses and expenses involved in clearing their records (e.g., filling out paperwork, making telephone calls). Free copies of court documents aid victims in clearing up their personal credit and criminal histories without accumulating more costs. A direct victim or a prosecutor must make a written request to the court to receive free certified copies of the complaint, judgment, and order. Minn. Stat. § 609.527, subd. 4 (b), (c).
Mandatory restitution is not available to phishing victims, and free court documents are only provided to victims whose identity was transferred, used, or possessed in violation of the statute.
Minnesota Financial Crimes Oversight Council and Task Force
The Minnesota Financial Crimes Oversight Council and Task Force also aids victims of identity theft. The council is a coordinated state and local effort that aids in the investigation and prosecution of identity theft and financial crimes. Its primary duty is developing an overall strategy to ameliorate the harm caused to the public by identity theft and financial crimes in Minnesota. To achieve this goal, the governing statute confers statewide jurisdiction to law enforcement officers to conduct criminal investigations and authorizes the making of grants to state and local units of government to combat identity theft crimes. The council may offer financial rewards for tips that lead to the investigation and successful prosecution of identity thieves. In addition, the statute authorizes the establishment of a victims’ assistance program to provide advice and guidance to victims on reporting identity theft and protecting their personal information. Minn. Stat. § 299A.681.
Criminal History Data Accuracy
In the event one’s identity is stolen and used by a thief to avoid prosecution, the victim’s criminal history record may incorrectly reflect crimes committed by the identity thief. Certain criminal history data is public, and employers and landlords often use this information for background checks. Public data includes: (1) the identity of an individual who was convicted of a crime, (2) the convicted offense, (3) associated court disposition and sentence information, (4) the controlling agency, and (5) confinement information. This information is public for 15 years following the discharge of the imposed sentence. Minn. Stat. § 13.87.
If an individual’s name or other identifying information is erroneously associated with a criminal history record, the individual may establish his or her innocence through fingerprint verification. Upon verification, the Bureau of Criminal Apprehension must redact the individual’s name or other identifying information from the public criminal history record. The information continues to remain on the record as private data that is available only to criminal justice agencies. The record is not completely redacted for public safety reasons. For example, if an identity thief is later arrested and uses the innocent person’s identity again, the private data in the criminal history database would alert law enforcement to the fact that the arrested person may be using an alias. Minn. Stat. § 13.87.
To determine what data is associated with an individual’s identity, the individual may request an “integrated search service” query be performed by a state or local law enforcement agency. The query would provide (1) a list of government entities that have public or private data about that individual, and (2) data that describes what information is maintained about that individual. Minn. Stat. § 13.873. If the individual subject of the data believes that private or public data is inaccurate or incomplete, the individual may notify the responsible authority in writing and seek a correction. Upon receiving notice, the responsible authority has 30 days to correct the data or notify the individual that the authority believes the information to be correct. Data that is successfully challenged must be completed, corrected, or destroyed by the government entity that holds the data. Minn. Stat. § 13.04.
If the responsible authority fails to take appropriate corrective action, it may be subject to civil and criminal liability. The responsible authority is liable for any damages suffered by the individual. In addition, for a willful violation, a responsible authority is guilty of a misdemeanor and is also liable for exemplary damages up to $10,000 for each violation. Finally, in addition to the above remedies, an aggrieved individual may seek an injunction or bring an action to compel compliance. Minn. Stat. §§ 13.08, 13.09.
This and any related posts have been adopted from the Minnesota House of Representatives Research Department’s Information Brief, Identity Theft and Related Crimes, written by legislative analyst Rebecca Pirius.
4 For more information on crime victims’ rights, see the House Research information brief, Crime Victim Laws in Minnesota: An Overview, September 2007.