Criminal Defense · Haute Lawyer Network
What Is Identity Theft and How Is It Prosecuted?
Last reviewed: June 2026
Identity theft is the unauthorized use of another person's identifying information — Social Security number, date of birth, credit card number, financial account numbers, or other personal data — to commit fraud or other crimes.
Federal identity theft statutes — including 18 U.S.C. § 1028 and the Aggravated Identity Theft statute (18 U.S.C. § 1028A) — create significant criminal exposure.
The Aggravated Identity Theft statute imposes a mandatory two-year consecutive prison term — served in addition to any other sentence — for using a means of identification during certain specified felonies. This makes aggravated identity theft one of the more severe mandatory minimum provisions in federal law.
States also have identity theft statutes with substantial penalties.
Common schemes charged as identity theft include tax refund fraud using stolen Social Security numbers, opening credit accounts with stolen information, making purchases using stolen card data, and medical identity theft to obtain insurance benefits.
Frequently Asked Questions
What is the difference between identity theft and identity fraud?
Identity theft is the act of stealing identifying information. Identity fraud is using that information to commit financial crimes. The terms are often used interchangeably but technically describe different steps in the same criminal scheme.
What is the mandatory sentence for aggravated identity theft?
A mandatory two-year consecutive prison sentence added to the sentence for the predicate offense. This cannot be reduced by the judge based on mitigating factors or avoided through a plea to a different charge.
What defenses are available in identity theft cases?
Lack of knowledge that the information was another person's real identity (in cases where the defendant claims they obtained the information from a source they believed was legitimate), mistaken identity, and suppression of illegally obtained evidence.
Can identity theft charges be brought in both federal and state court?
Yes, in many cases. Large-scale identity theft schemes are typically prosecuted federally. Smaller individual cases are more often prosecuted in state court.
What is synthetic identity fraud?
Creating a fictitious identity by combining real and fabricated information — such as using a real Social Security number with a made-up name and birthdate. Synthetic identity fraud is one of the fastest-growing financial crimes.
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