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Supreme Court: Making Up SS Number Is Not Identity Theft

The practice of charging undocumented workers with identity theft for using a fictitious social security number to obtain work -- or, more commonly, threatening the charge to induce pleas to less serious crimes that lead to quick deportations -- will screech to a halt after yesterday's unanimous Supreme Court ruling that making up a number, without knowing whether the number has been assigned to a real person, is not identity theft.

The decision (pdf) makes the Justice Department's coercive tactics against undocumented workers even more shameful. As TalkLeft observed here, the Justice Department (with a federal court's blessing) cranked out assembly line justice in Iowa following the arrest of hundreds of undocumented workers at an Agriprocessors meatpacking plant. The workers were told to accept a five month sentence or face prosecution for identity theft, and were required to make that decision without having an adequate opportunity to consult with counsel or to explore their options. It is now clear that the workers were coerced with a meaningless threat.

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The Justice Department's argument in the Supreme Court might be considered silly if it hadn't been accepted by a number of lower courts. (The fact that Republican presidents nominated federal judges for 20 of the 28 years preceding the Obama presidency undoubtedly has something to do with the willingness of those courts to accept the Justice Department's strained reasoning.)

Justice Stephen G. Breyer, in his opinion for the court, said the case should be decided by applying “ordinary English grammar” to the text of the law, which applies when an offender “knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person.” The government had argued that the “knowingly” requirement applied only to the verbs in question. Justice Breyer rejected that interpretation, saying that “it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.”

He gave examples from everyday life to support this view. “If we say that someone knowingly ate a sandwich with cheese,” Justice Breyer wrote, “we normally assume that the person knew both that he was eating a sandwich and that it contained cheese.”

The government claimed it only had to prove that the worker knowingly used a means of identification (a counterfeit social security card) without lawful authority -- an interpretation that, as Justice Alito noted in a surprisingly reasonable concurring opinion, makes criminal liability a product of chance.

Consider, Justice Alito said, a defendant who chooses a Social Security number at random. “If it turns out that the number belongs to a real person,” Justice Alito wrote, “two years will be added to the defendant’s sentence, but if the defendant is lucky and the number does not belong to another person, the statute is not violated.”

If the eminently sensible reasoning advanced by Justices Breyer and Alito occurred to the Justice Department, its sense of reason was overcome by its inclination to use heavy-handed tactics against undocumented workers.

Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday’s decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally. “In the ordinary immigration case, this will no longer be a weapon,” Professor Legomsky said.

Nor should it be. Perverting the meaning of clear statutes to gain a litigation advantage takes the "Justice" out of Justice Department.

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  • Display: Sort:
    Here's a novel idea: (5.00 / 1) (#35)
    by Anne on Tue May 05, 2009 at 02:27:01 PM EST
    how about the DOJ and those who come under their supervision stop taking an ends-justify-the-means approach to law enforcement?  How about they stop saying, in effect, "well, this is what we want to do, so how about we interpret this in a way that allows us to do that?"

    Oh, wait - that's the same argument the torture aficionados used, and the same one the wire-tappers used; I wonder if there's any sort of coincidence there?

    I can't speak for anyone else, but I see this kind of thing as the by-product of a mind-set that has decided that the only things that matter are their goals and their agenda, and if people's basic civil and constitutional rights are sacrificed in the process, well, too bad, so sad.

    I can't be the only one who saw this coming.


    if all a person does (5.00 / 1) (#36)
    by Bemused on Tue May 05, 2009 at 02:58:55 PM EST
     is use the SSN for employment purposes, the fact the phony number is your number would cause you no harm-- and it would be possible SS would actually credit his earnings to you when calcaluating your benefit.

     

    don't be so sure (none / 0) (#38)
    by diogenes on Wed May 06, 2009 at 04:54:07 AM EST
    If someone uses my SSN then the employer has to send in a 1099, so the IRS will assume that my SSN earned more money than I declared and will dun me for tax.
    Congress needs to pass a law explicitly making the use of a SSN which is not your own illegal.
    Does this case mean that I can enter credit card numbers at random on online shopping sites, since I don't know what particular person's identity I'm stealing?

    Parent
    So, (none / 0) (#1)
    by jbindc on Tue May 05, 2009 at 12:37:35 PM EST
    What would you suggest?  That people who make up Social Security numbers and get lucky that it isn't someone else's shouldn't be prosecuted for breaking some law?

    Look, I empathize with people who are so desperate to help their families that they come here looking for a better life, but despite what Janet Napolitano says, it is still illegal to come into this country without the proper paperwork. It is also illegal for people to make up phony identification documents. Why are these difficult concepts for people to understand? I understand the argument here, that these people did not "knowingly" take someone else's number, but they still broke other laws.

    Like anything else in life, if you knowingly (there's that word again) choose to break the law, then you take the chance that there might be punishment for it in your future.

    What would you suggest? (5.00 / 1) (#4)
    by sarcastic unnamed one on Tue May 05, 2009 at 12:40:56 PM EST
    What would you suggest?  That people who make up Social Security numbers and get lucky that it isn't someone else's shouldn't be prosecuted for breaking some law?
    I would assume they still can be charged with document fraud.

    Parent
    According to the post (none / 0) (#8)
    by jbindc on Tue May 05, 2009 at 12:50:37 PM EST
    Stephen H. Legomsky, a professor of immigration law at Washington University School of Law in St. Louis, said Monday's decision would have a major impact on the strategy of Immigration and Customs Enforcement, making it more difficult for the agency to press criminal charges against immigrants with no other offenses but working illegally. "In the ordinary immigration case, this will no longer be a weapon," Professor Legomsky said.

    This expert makes no mention of document fraud (although you could be right, unless "working illegally" envelopes document fraud).  If they can't charge them with document fraud, then that will open up many cans of worms for many different scenarios.

    Parent

    A weapon? (none / 0) (#9)
    by Big Tent Democrat on Tue May 05, 2009 at 12:52:26 PM EST
    I know the use is figurative but what more does he want to do than deport them?

    He;'d rather have them on our prisons because they want to work? What a bizarre statement. your seeming endorsement of it surprises me.

    Parent

    I wasn't endorsing it (none / 0) (#13)
    by jbindc on Tue May 05, 2009 at 01:09:51 PM EST
    I'm disagreeing that there is nothing else they can be charged with.

    But, come to find out, he was also charged with illegally entering the country and misusing immigration documents.

    So, since he actually DID use other people's numbers, are those other people now going to have the headaches of unwinding all this mess just go away?

    Parent

    Is the guy's being in jail (none / 0) (#16)
    by Big Tent Democrat on Tue May 05, 2009 at 01:12:44 PM EST
    going to unwind it for them?

    Parent
    No, but (none / 0) (#20)
    by jbindc on Tue May 05, 2009 at 01:18:33 PM EST
    My guess is the IRS isn't going to be more helpful to these people either, nor will any creditors be more sympathetic (and they won't have to be).

    Parent
    Prosecutors had used the threat of (none / 0) (#15)
    by sarcastic unnamed one on Tue May 05, 2009 at 01:12:15 PM EST
    Prosecutors had used the threat of [identity theft] to persuade illegal workers to plead guilty to lesser charges of document fraud.
    imo, unless they used a SS# that was someone else's they should just simply  be deported.

    If they used someone else's SS# - whether they knew it or not - and if they caused actual damage to the rightful owner of that SS#, they should be charged with something for that damage. If no actual damage then just deport them.

    Parent

    Well (none / 0) (#17)
    by jbindc on Tue May 05, 2009 at 01:15:30 PM EST
    He did use someone else's SSN and someone else's immigration number, but according to this ruling, since he didn't KNOW it was someone else's, the 2 year penalty for aggravated identity theft doesn't apply.

    Parent
    I would demand someone (none / 0) (#25)
    by waldenpond on Tue May 05, 2009 at 01:36:03 PM EST
    who uses my ID to get credit cards etc is prosecuted.  I don't give a d@mn if they paid the friggin' bill.  Can I just go get a fake passport?  I don't like my picture.. can I go get a fake with a new picture?  I wasn't intending to emotionally nor financially damage anyone.

    Over time, there is damage.  Some moron used my grandson's ssn.  It took my daughter two years to clear it up even though it was obvious the 4 year old was unable to work legally nor sign contracts.

    Parent

    Fortunately, (5.00 / 1) (#32)
    by TChris on Tue May 05, 2009 at 02:03:02 PM EST
    the standard for deciding whether to prosecute is not whether someone like waldenpond "demands" prosecution.

    Parent
    Heh (5.00 / 1) (#33)
    by Big Tent Democrat on Tue May 05, 2009 at 02:05:35 PM EST
    Sorry, WP, but that was funny.

    Parent
    Again, I'm talking about actual damage (none / 0) (#30)
    by sarcastic unnamed one on Tue May 05, 2009 at 01:55:34 PM EST
    due to using someone else's SS#/identity/whatever. And that damage is regardless of intent or knowledge.

    Your daughter and grandson were clearly damaged and the "moron" who did it should be held liable.

    On the other hand, for example, a contractor buddy of mine's longtime illegal immigrant employee used his (legal-immigrant, but retired back to Mexico) uncle's SS# for years  before he became legal and got his own SS#.

    The uncle was not damaged - in fact, the nephew paid $1000's into his uncle's SS account while the uncle was retired.

    I tend to think damage from illegally using someone else's SS/ID happens a lot more often than not, but if there is no damage, imo, just deport the offender.

    Parent

    The SC (none / 0) (#37)
    by MrConservative on Tue May 05, 2009 at 09:10:26 PM EST
    said that they can't document them with AGGRAVATED IDENTITY THEFT, which is a very serious crime which was not written with these people in mind.  They can still be charged with DOCUMENT FRAUD, which is a charge much, much more fitting to the crime.

    Parent
    How bout this suggestion... (5.00 / 1) (#10)
    by kdog on Tue May 05, 2009 at 12:54:17 PM EST
    get employers out of the immigration police racket, and let anybody who wants to work and can find a job work.  If they have a valid SS, they can provide and pay the tax and qualify for future benefits, if they don't you can still charge them the tax without the benfits, which would be de-facto monetary punishment for the undocumented, if that is the goal.

    Parent
    I suggest (none / 0) (#6)
    by Big Tent Democrat on Tue May 05, 2009 at 12:44:47 PM EST
    writing a proper criminal statute that addresses your concerns.

    Parent
    This ruling isn't about other criminal charges... (none / 0) (#11)
    by sj on Tue May 05, 2009 at 01:01:42 PM EST
    ...or possible criminal charges.  The ruling is specifically about identity theft.  

    The question in the case was whether workers who use fake identification numbers to commit some other crimes must know they belong to a real person to be subject to a two-year sentence extension for "aggravated identity theft."

    There are already charges being filed.  What's your point?

    Parent

    Justice Breyer rejected that interpretation, saying that "it seems natural to read the statute's word `knowingly' as applying to all the subsequently listed elements of the crime."
    Indeed, the gvt's arguement was kindergarten-level silly.

    Good ruling.... (none / 0) (#3)
    by kdog on Tue May 05, 2009 at 12:40:25 PM EST
    a made up 9 digit number is not an indentity by any stretch of the imagination, therefore it cannot be indentity theft to make up a 9 digit number.

    Common sense to me....sh&t, a legit SS number is not an identity.

    But what if (none / 0) (#12)
    by brew on Tue May 05, 2009 at 01:08:49 PM EST
    that made-up number happens to be the same as yours? It can be used to work and pay taxes -- or get a driver's license, a loan, a credit card, etc. Hope all the payments are on time.

    Parent
    In what state (5.00 / 1) (#19)
    by Steve M on Tue May 05, 2009 at 01:17:42 PM EST
    can you get a driver's license merely by providing a 9-digit number?

    Parent
    A hassle to be sure... (5.00 / 1) (#22)
    by kdog on Tue May 05, 2009 at 01:19:27 PM EST
    but as they say...hate the game, not the player.  

    I honestly wouldn't be angry at the undocumented slob who happened to dream up my 9 digits, I'd be angry that our SS numbers are used for identification purposes after we were specifically told they would not be when SS was first implemented....it even used to say so right on the card.

    Parent

    You might be (none / 0) (#23)
    by jbindc on Tue May 05, 2009 at 01:22:49 PM EST
    once you started having to undo all the mess it would cause, whether you agree with having an SSN or not.  This guy used fake numbers for 6 years. That would be potentially a very large mess to clean up with bearing all the burden of cleaning it up.

    Parent
    What mess? (none / 0) (#24)
    by sj on Tue May 05, 2009 at 01:35:38 PM EST
    Did he ruin somebody's credit?  Did he pay into the wrong account for unemployment insurance?  Did the IRS question income for the taxpayer?  Exactly what mess are you talking about?

    Or is it a hypothetical mess?  Because if you're talking hypothetical mess for this specific defendent I'll stop trying to understand your point.

    Parent

    Read again (none / 0) (#27)
    by jbindc on Tue May 05, 2009 at 01:46:49 PM EST
    kdog said he wouldn't be mad at the person who randomly used his SSN, and I said kdog might be if he had to undo all the mess that could be caused by someone using his number.

    But as to this defendant - since he DID use someone else's number, my guess is, there is a real mess to clean up there as well.

    Parent

    It's only a "mess"... (none / 0) (#29)
    by kdog on Tue May 05, 2009 at 01:50:07 PM EST
    if you recognize the authority of the number...I don't.

    The day I make the big score and never need to work again is the day I burn my card....if I wasn't a piker I'd do it now, but my stones ain't that big...I like eating with relative ease:)

    Parent

    I'm a weirdo... (none / 0) (#26)
    by kdog on Tue May 05, 2009 at 01:45:33 PM EST
    who don't plan on asking no bank for no credit...sh*t, for all I know somebody already is using my number, I don't check credit scores or anything like that.

    But lets be clear...we ain't talking about life and death or "real" crime here...we're talking money-changer numbers games and people working around them to live.  I can't get worked up about 9 digit numbers...its real but it ain't real if you know what I mean.  Murder, rape, robbery...thats crime.  Making up numbers doesn't rate.

    Parent

    I guess we disagree (none / 0) (#28)
    by jbindc on Tue May 05, 2009 at 01:48:05 PM EST
    I consider "theft" a real crime.

    Parent
    Theft of something real.... (none / 0) (#31)
    by kdog on Tue May 05, 2009 at 01:56:11 PM EST
    yes, like a song or a car or a television.

    A number?  That sh&t ain't real.

    Parent

    Theft (none / 0) (#34)
    by TChris on Tue May 05, 2009 at 02:08:38 PM EST
    means taking or misappropriating the property of another (at common law, it meant "taking and carrying away").  Making up a number is not theft as that concept has been historically understood because the number is not "taken" from anyone else.

    Parent
    I don't know in which world you live in but in (none / 0) (#40)
    by suzieg on Thu May 07, 2009 at 12:44:43 AM EST
    the "real" world, your credit score rules! Geez, you can't even rent an apt these days without a credit check or even have internet, telephone or electricity installed, let alone getting renters' insurance. I know of this fact, because I've just rented an apt in Austin for 5 months and had to explain and sign affidavit as to the reason why my credit was so screwed up because of this woman's use of my number!

    What should have taken a day to do, in ordinary times, took over 3 weeks and I was lucky that my landlord was willing to wait for me to sort everything out to his satisfaction, thanks in part to reference letters from my past landlords!

    Someone ruins your good name and credit you are out in the cold!

    Parent

    I guess I'm lucky to live in (none / 0) (#42)
    by kdog on Thu May 07, 2009 at 01:03:35 PM EST
    a world the same as my landlady's...where a look in the eye and a handshake is the only lease you need.  No crooked credit reporting agency required to live.

    Luckily, not everybody plays these games and lost touch with humanity...not everybody treats their fellow humans as nothing more than a 9 digit number..."real" people are still out there, though maybe too few....and less and less everyday as those who knew a world before Equifax die off.  

    Hopefully the youth can imagine a world without Equifax as well...I, for one, have no use for Equifax.

    Parent

    Because it hasn't happened to you, YET! (none / 0) (#39)
    by suzieg on Thu May 07, 2009 at 12:31:12 AM EST
    As someone who has had her identity stolen by an illegal female worker who used it to get medical care resulting in my being accused of fraud by my state health insurance risk pool and being cut off temporarily while I was going through cancer treatment, I have no sympathy for any "poor person who steals/makes up a social security number to better their life". What would happen to me, if I did the same in Mexico?

    This woman also bought a car, opened a credit card account at Dillard's and didn't pay the bill + applied for a mortgage, thanks to my ss number and then, excellent credit rating. To this day, I still cannot get her address off my credit reports. This past year has been hell and wonder when and if it will ever end!

    If you're not worried about someone using your ss, why not post it here, I will make sure to post it at one of these day laborers' sites in Houston. I'm sure it'll be appreciated, seeing that you are so kind hearted....

    If I could get these justices' social security numbers, I would hand them over to sellers of false identity cards and let them see what s...t you have to go through to get your good name and credit back!

    Parent

    Again... (none / 0) (#43)
    by kdog on Thu May 07, 2009 at 01:06:11 PM EST
    my sympathies for your troubles...but isn't your beef primarily with the credit reporting agencies?  From my view it looks like they are the ones screwing you around the most...they couldn't care less if your score is accurate, you're just a number to them.

    Good luck.

    Parent

    It was someone else's # (none / 0) (#14)
    by jbindc on Tue May 05, 2009 at 01:10:32 PM EST
    I am shocked to say (none / 0) (#5)
    by Big Tent Democrat on Tue May 05, 2009 at 12:43:54 PM EST
    That Justice Alito's opinion made the most sense to me.

    That may require counseling. (5.00 / 1) (#21)
    by coast on Tue May 05, 2009 at 01:19:24 PM EST
    Well, (none / 0) (#7)
    by bocajeff on Tue May 05, 2009 at 12:48:17 PM EST
    When Scalia and Ginsburg agree then either the world is coming to an end or it's the correct ruling. Then again, it could be both.

    It can be a big mess (none / 0) (#41)
    by catmandu on Thu May 07, 2009 at 07:30:38 AM EST
    Someone stole my mother's id some years back, got a drivers license and went to "test drive" a motorcycle.  The police show up at my Mom's door and she had to hire a lawyer to handle the stolen motorbike charges.  My Mom can't even drive a motorcycle and lived a state over. It even appeared on her credit reports!! It cost big $$$$ to clear up.
    There are many pitfalls---cars registered used in crimes, credit cards and especially IRS problems.  It is just as serious if it is an illegal alien or citizen.