Blurred Lines of Identity Crimes: Intersection of the First Amendment and Federal Identity Fraud

42 Pages Posted: 29 Oct 2014 Last revised: 18 Jul 2015

Date Written: October 27, 2014

Abstract

Several recent high-profile criminal cases have highlighted the dynamic nature of identity crimes in a modern digital era and the boundaries prosecutors sometimes push to squeeze arguably wrongful conduct into an outdated legal framework. In many cases, two federal statutes — 18 U.S.C § 1028 and § 1028A — provide prosecutors with potent tools to aggressively pursue online identity thieves. But the broadly defined terms of these provisions may also expose innocent parties to criminal liability.

This Note argues that broadly defined federal identity-fraud statutes facilitate unconstitutional restrictions on protected speech. Specifically, this Note maintains that § 1028 and § 1028A are defined in vague and overbroad statutory terms that criminalize expressive conduct and chill protected speech. Left unchecked, these statutes expose institutional journalists, online commentators, and ordinary citizens to criminal liability for nothing more than sharing a hyperlink. This Note then concludes by presenting three potential routes to eliminate these unconstitutional restrictions and protect the Internets role as a unique communication medium.

Keywords: identity fraud, identity theft, aggravated identity theft, hacktivism, hyperlink, criminal law, cybersecurity, computer crime, First Amendment, freedom of speech, freedom of press

Suggested Citation

DiSanto, Philip, Blurred Lines of Identity Crimes: Intersection of the First Amendment and Federal Identity Fraud (October 27, 2014). Columbia Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2515578

Philip DiSanto (Contact Author)

Columbia Law Review ( email )

435 West 116th Street
New York, NY 10027
United States

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