Legal Issues

The United States Supreme Court in the recent case Flores-Figueroa v. United States was presented with a rather common type of legal disagreement in a novel technological context.  Specifically, in a case involving the proper legal interpretation and application of a federal law providing for a more severe type of criminal sentence in certain cases involving an identity theft, the Supreme Court was asked to interpret the language of that federal law in order to determine the prosecutions burden of proof regarding the crimes underlying elements as well as the extant to which the prosecution was statutorily required to prove a knowing violation of these underlying elements of the crime.  The federal law at issue, 18 U.S.C section 1028A(a)(1), provided in relevant part that an enhanced or aggravated type of identity theft occurs when in addition to certain underlying or predicate types of crimes an offender also knowingly . . . uses, without lawful authority, a means of identification of another person.   This case, although nominally a standard criminal law case, significantly affects and negatively impacts businesses in their role as employers because of the employer-employee nature of the alleged crimes in the instant case.

The criminal case arose out a non-citizen employee-applicant who submitted documentation in the form of social security cards and alien registration documentation that, at different times, included false names and included the social security information of other people. The applicant-employee was subsequently charged with two immigration violations, two of the aforementioned predicate types of crimes required by the statute, and then also charged with the aggravated type of identity theft as a result of using the identity information belonging to other people.  Defendant conceded the propriety of the immigration offenses, but challenged the aggravated identity theft charge on the grounds that the government did not prove that he had knowingly used the identity information of another person as required by the statute the government, on the other hand, argued that the federal law did not impose a knowledge requirement.  The issue presented was whether the knowledge requirement applied to every element of the aggravated type of identitification theft, the Supreme Court held that the statute did require the government to prove knowledge for every element, and the majority therefore ruled in favor of Flores-Figueroa.

People frequently view identity theft too narrowly more particularly, there exists a broader range of victims than only the person who has had an identity stolen.  Businesses, especially in an employer-employee context, are also victims when they make hiring or employment-related decisions based upon false premises.  In the instant case, for example, Flores-Figueroa was hired, trained, and compensated based on false premises.  He was a non-citizen and through the presentation of false and misleading documentation he was able to trick the business into believing that he possessed a different type of status and that he was a legal hire.  The problem is not a new one, though technological developments make it much more difficult to detect and to address, and the Supreme Court decision in the instant case renders businesses more vulnerable to this type of identity theft and identity fraud by providing an effective ignorance defense for disingenuous employees and applicants.  It has been noted in the academic literature, with respect to the increasingly sophisticated use of technology to mask true identities in ways that allow the commission of criminal acts, that A person seeking to harm a business in this day and age does not aim his attacks at the companys physical assets instead, he takes aim at its computers HYPERLINK httpwww.questia.comPM.qstaod5015323599(Yang and Hoffstadt 202).

Taking aim at the computers, meaning the manipulation of information and data, is increasingly accomplished through the perpetration of such crimes as identity theft.  Businesses rely on the veracity of this identity data when hiring, when promoting, when granting access to secret business information, and when granting physical access to different parts of the premises physical facilities.  Identity theft therefore poses severe risks to businesses, in addition to the individuals whose identities have been stolen, and it is within the broader context of victims that this Supreme Court decision must be viewed.  The means through which this particular identity theft was accomplished, the use of inaccurate social security information, is also troubling from a business perspective.  Specifically relevant to employee identification fraud is the troubling fact that  The general consensus on the acquisition of SSNs seems to be to not ask for it until absolutely necessary HYPERLINK httpwww.questia.comPM.qstaod5035128283(Calvasina, Calvasina, and Calvasina 74) and also that The number of people potentially subject to identity theft and fraud in recent years has become mind-boggling HYPERLINK httpwww.questia.comPM.qstaod5035128283(Calvasina, Calvasina, and Calvasina 70).

The implication is that businesses are not doing enough to prevent security breaches as a result of identity misrepresentations, that this lack of an effective defense may place business reputations and secrets at risk, and that this may lead to a variety of different forms of litigation on the grounds of malfeasance or negligence in monitoring and ensuring the accuracy of employee identities.  Finally, the Supreme Courts decision in Flores-Figueroa v. United States complicates this for businesses because the legal holding essentially provides that an employee or an applicant can plead ignorance and evade the application of the aggravated identity theft statute.  The only risk for a dishonest employee in similar circumstances are immigration charges and it may be very difficult for government prosecutors to prove beyond a reasonable doubt that there was a knowing violation of all of the identity thefts criminal elements.  This, in certain ways, shifts responsibility from dishonest or criminally-inclined applicants and employees to businesses in terms of detecting identity theft in its initial or subsequent stages.  This, of course, will impose more costs on business and negatively impact the business environment.

In the final analysis, identity theft or identity fraud that occurs in a business setting negatively impacts businesses as well as the persons whose identities have been stolen.  The Supreme Courts interpretation of the aggravated identification theft statute makes it easier for dishonest applicants and more difficult for business employers perhaps the best solution, is for Congress to review its grammatical constructions in order to determine whether it ought to amend the statute in order to eliminate or modify the knowingly features of the statute in order to remove the type of ignorance defense effectively recognized by the Supreme Court in the instant case.  This type of identity fraud and theft is likely to continue if ignorance can be pleaded so easily and individuals and businesses will suffer.