Is identity theft a felony?

Identity theft is using another person's identifying information, such as a name, Social Security number or account number, without permission and with intent to defraud or to commit another crime.^1,2,3,4

Pennsylvania's law covers possessing or using another person's identifying information without consent to further any unlawful purpose. North Carolina's covers intent to pass as the other person to make financial or credit transactions, get anything of value, or avoid legal consequences. Virginia's covers using the information to obtain money, credit, goods, services or identification documents. Texas and North Carolina also cover information of a dead person.

Many states punish holding the information, not only using it. Texas covers obtaining, possessing, transferring or using it with intent to harm or defraud, and Florida covers possessing it with intent to use it fraudulently.^4,5,6

Texas presumes the intent to harm or defraud when a person possesses the identifying information of three or more other people, with an exception for businesses and agencies acting lawfully. Illinois covers obtaining, recording or possessing another person's identifying information with intent to commit any felony.

Identity theft is a misdemeanor in a few states when the amount is small. Pennsylvania grades it a first-degree misdemeanor when the total value is under $2,000, New York makes identity theft in the third degree a class A misdemeanor, and Virginia punishes it as a Class 1 misdemeanor unless an exception applies.^1,3,5,7,8,9

Virginia's exceptions include a financial loss of $1,000 or more and a second or later conviction, both Class 6 felonies. Florida makes using someone's information to harass that person a first-degree misdemeanor. California lets prosecutors charge identity theft as a misdemeanor or a felony.

In several states, identity theft is a felony even at the lowest level. Texas, Florida, Illinois, Ohio and North Carolina all grade the basic offense as a felony.^4,5,6,10,11

Texas makes it a state jail felony when fewer than five items of information are involved. Florida makes it a third-degree felony. Illinois makes identity theft of $300 or less in value a Class 4 felony. Ohio makes identity fraud a fifth-degree felony, and North Carolina makes identity theft a Class G felony.

A higher dollar amount raises the grade. New York makes identity theft a class E felony above $500 and a class D felony above $2,000, and Pennsylvania makes it a third-degree felony at $2,000 or more.^{1,3,5,6,10,12,13}

Virginia makes it a Class 6 felony when the financial loss is $1,000 or more. Ohio raises identity fraud to a fourth-degree felony at $1,000, Florida makes it a second-degree felony at $5,000 or more, and Illinois makes it a Class 3 felony from over $300 up to $2,000, rising to a Class X felony above $100,000.

Using the information of many people raises the grade. In Texas the grade rises from a state jail felony for fewer than 5 items to a first-degree felony for 50 or more, and in Florida using the information of 10 to 19 people is a second-degree felony.^3,4,5,6,11

Illinois makes the versions of identity theft other than using the information to get money or property a Class 2 felony when they involve 3 or more people within 12 months. North Carolina raises identity theft from a Class G to a Class F felony when the person has the identifying information of three or more people. Virginia makes obtaining the information of 5 or more people to sell or distribute it a Class 5 felony.

The victim's age, harm to the victim and earlier convictions can also raise the grade. Pennsylvania moves identity theft up one grade when the victim is 60 or older, a care-dependent person or under 18, and a third or later offense is a second-degree felony.^1,3,5,6,11

Florida makes it a second-degree felony to fraudulently use the information of a person under 18 or 60 or older. Illinois calls identity theft against a person 60 or older or with a disability aggravated identity theft, a Class 3 felony at the lowest value level. North Carolina raises the grade when the victim is arrested, detained or convicted because of the offense, and Virginia makes it a Class 5 felony when the person whose identity was used is arrested and detained.

Texas

Texas: fraudulent use or possession of identifying information is a state jail felony for fewer than 5 items, a third-degree felony for 5 to fewer than 10, a second-degree felony for 10 to fewer than 50 and a first-degree felony for 50 or more.⁴

The first three levels rise to the next higher category if the offense is committed against an elderly individual, as Texas defines that term.

Florida

Florida: fraudulent use of personal identification information is a third-degree felony. It is a second-degree felony at $5,000 or more and a first-degree felony at $50,000 or more.⁵

The second- and first-degree offenses carry mandatory minimum prison terms of 3 and 5 years, and 10 years at $100,000 or more or for the information of 30 or more people. The same counts apply to using the information of 10 to 19 people (second degree) or 20 to 29 people (first degree).

California

California: willfully obtaining another person's identifying information and using it for an unlawful purpose is punishable by a fine, up to one year in county jail, or both, or by a felony jail sentence under Penal Code section 1170(h). It can be charged as a misdemeanor or a felony.^8,9

Acquiring or keeping another person's identifying information with intent to defraud is punishable by up to one year in county jail, and by a felony jail sentence for a person with a prior conviction under the section or for the information of 10 or more people.

New York

New York: identity theft is a class A misdemeanor in the third degree, a class E felony in the second degree (over $500, or when a felony is committed) and a class D felony in the first degree (over $2,000, or when a class D or higher felony is committed).^7,12,13,14

The second and first degrees also apply after a prior identity theft or related conviction within the last five years. Knowingly possessing another person's account number or similar information, intending to use it to commit a crime, is a class A misdemeanor.

Illinois

Illinois: using another person's identifying information to get credit, money, goods, services or property is a Class 4 felony up to $300 in value, a Class 3 felony up to $2,000, a Class 2 felony up to $10,000, a Class 1 felony up to $100,000 and a Class X felony above that.⁶

The other versions, such as using the information to commit a felony or possessing information known to be stolen, are generally Class 3 felonies. Aggravated identity theft, which involves a victim 60 or older, a person with a disability or an organized gang, is graded higher.

Pennsylvania

Pennsylvania: identity theft is a first-degree misdemeanor when the value is under $2,000 and a third-degree felony at $2,000 or more.¹

It is a third-degree felony at any value if committed in furtherance of a criminal conspiracy, and a second-degree felony for a third or later offense. A victim aged 60 or older, a care-dependent person or a minor raises the grade by one level.

Ohio

Ohio: identity fraud is a fifth-degree felony. It is a fourth-degree felony at $1,000 up to $7,500, a third-degree felony at $7,500 up to $150,000 and a second-degree felony at $150,000 or more.¹⁰

When the victim is an elderly person, a disabled adult, an active duty service member or that member's spouse, each level is one degree higher, starting at a fourth-degree felony.

North Carolina

North Carolina: identity theft is a Class G felony. It is a Class F felony if the victim suffers arrest, detention or conviction as a result, or the person has the identifying information of three or more people.^2,11

The law covers information of living or dead people and requires intent to pass as the other person for financial or credit transactions, to get anything of value, or to avoid legal consequences.

18 U.S.C. § 1028

Federal identity fraud, 18 U.S.C. section 1028(a)(7), applies when a person knowingly transfers, possesses or uses another person's means of identification, without lawful authority, intending to commit or help commit, or in connection with, a federal crime or a state or local felony. The usual maximum is 5 years in prison, and it is 15 years if the person gets $1,000 or more of value in a year.¹⁵

The law applies only in listed circumstances, such as when the conduct is in or affects interstate or foreign commerce. The maximum is 20 years if the offense was committed to help a drug trafficking crime, in connection with a crime of violence, or after a prior conviction under the section.

18 U.S.C. § 1028A

Aggravated identity theft, 18 U.S.C. section 1028A, applies when a person knowingly transfers, possesses or uses another person's means of identification, without lawful authority, during and in relation to certain federal felonies. It adds a mandatory 2 years in prison on top of the sentence for that felony, and the court cannot place the person on probation for it.¹⁶

The 2 years cannot run at the same time as the sentence for the underlying felony, and the court may not shorten that sentence to make up for it. The listed felonies include theft of public money, most felonies in the federal chapter on fraud and false statements, and mail, bank and wire fraud.

Under 12 U.S.C. § 1829, a person convicted of a criminal offense involving dishonesty, breach of trust or money laundering may not work at, own or control, or otherwise take part in the affairs of an FDIC-insured bank without the FDIC's prior written consent. The same applies to a person who agreed to a pretrial diversion or similar program for such an offense.^17,18

FDIC rules count an offense as one involving dishonesty if the person cheats or defrauds, or wrongfully takes property, or if the law defines it as dishonest or makes dishonesty an element. The FDIC decides from the offense's statutory elements or court rulings on them, so not every conviction for this crime is covered. The rules also leave out a misdemeanor committed more than one year before the person files a consent application, not counting time spent incarcerated.

The bank ban in 12 U.S.C. § 1829 does not apply once 7 years have passed since the offense, or 5 years since release if the person was incarcerated for it. For an offense committed at age 21 or younger, it stops applying once more than 30 months have passed since sentencing.^17,18,19,20

It also does not apply to a conviction covered by an expungement, sealing or dismissal order meant to destroy or seal it from the person's record, or to minor offenses that meet the FDIC's de minimis rules. The FDIC's small-dollar simple theft exemption expressly leaves out identity theft and fraud. The time limits do not apply to certain listed federal offenses, including bank fraud (18 U.S.C. 1344). For those, the FDIC may not consent for 10 years after the conviction becomes final, though the sentencing court may grant an exception on the FDIC's motion.