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State Identity theft Bill: An Analysis of South Dakota’s House Bill 1159 (Feb 2013)

Overview:  HB 1159 creates state-level penalties relating to identity theft and employment.

Section 1:  This first section amends current South Dakota Law regarding identity theft.  In general, it provides that a person commits identity theft if that person takes, uses, transfers, etc. the identifying information of another person with the intent to deceive or defraud.  It also provides that identity theft occurs when a person accesses or attempts to access the financial resources of another person by using identifying information.

Identity theft committed in this section is a Class 6 felony.  

Section 2:  This section is new.  It has two subsections.  The first subsection is geared toward employees.  The second subsection is geared toward employers.  Basically, Section 2(1)states that a person commits identity theft if the person attempts to use another person’s identifying information with the intent to obtain or continue employment.  Section 2(2) states that a person commits identity theft if, in hiring an employee, the person accepts any personal identifying information of another person from an individual,  knowing that the individual is not the actual person identified by that information, and uses that identity information to determine if the individual has the legal right and authorization to work in the U.S. under federal law.    

Identity theft committed in this section is a Class 6 felony.  

Analysis:   These sections do not appear to violate federal law as states can pass laws that relate to identity theft.  However, it is worth noting that Section 2 could be considered duplicative of federal laws and federal efforts to curb identity fraud.  Indeed, the federal government has strong fraud and false statement laws in the area of employment, including an Aggravated Identity Theft statute—18 USC Section 1028A.  This federal statute has been used by prosecutors to bring cases against individuals for using false documents to gain employment knowing that the document belonged to someone else.  Along with the Aggravated Identity Theft Statute, the federal government has other laws that prohibit document fraud, such as:  (1) 18 USC. Section 1546 for Fraud and Misuse of Visas, Permits, and other Documents; and, (2) Section 274C of the INA, 8 USC Section 1324c Penalties for Document Fraud.      

Additionally, the federal government has courts, prosecutors and investigative agencies that all have experience and expertise in this area and are actively prosecuting fraud and identity theft cases in federal courts across the country.  Further, the federal government established in 2006, a Document and Benefit Fraud Task Forces (DBFTF).  According to ICE, the DBFTFs were created "to target, seize illicit proceeds of and dismantle the criminal organizations that threaten national security and public safety and address the vulnerabilities that currently exist in the immigration process."  The DBFTFs work in partnership with other agencies including, the Department of Labor, the Social Security Administration, U.S. Postal Service, U.S. Citizenship and Immigration Services, the Department of State and various state and local law enforcement agencies. These task forces focus their efforts on detecting, deterring and disrupting document fraud. 

In summary, given the federal government’s expertise and resources in the area of document and identity fraud, a strong argument can be made that this bill is unnecessary because it duplicates the efforts of the federal government.  This bill will likely burden the taxpayers of South Dakota by adding to the case load of state investigators, prosecutors and judges.    

 

This document was prepared for CLINIC in February 2013 by Karen A. Herrling.  This document is for informational purposes only and is not intended as legal advice.  For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (202) 635-7410.