Identity Theft and the Need for an Office of Special Prosecutor

Every state needs a special prosecutor’s office dedicated to the investigation and prosecution of identity theft/financial fraud, which is often a multi-jurisdictional crime. This would facilitate a robust investigation and prosecution of such crime. There are numerous problems that arise with localized prosecution in the investigation and prosecution of financial crimes and identity theft. It is a pervasive crime and the number of victims, limited government resources, overworked or inexperienced prosecutors, lack of knowledge or understanding of the elements of the crime, and application of the traditional approach to jurisdiction used in physical crimes further compound the problem.

On September 19, 1972, New York State Governor Nelson D. Rockefeller signed a series of executive orders, one of which led to appointing special prosecutors and created state prosecutor’s office to prosecute, known as Office of the Special Narcotics Prosecutor, to address what was the proliferation of sale and use of illegal drugs (Najdari, 1974).

In 1972, the Office of the Special Narcotics Prosecutor for New York City (OSNP) was established to combine into a singular office the manpower, equipment, and resources of each of the five district attorney’s offices that serve the New York metropolitan area. The OSNP has citywide jurisdiction over drug-related offenses. The other five district attorneys work closely with the OSNP by assigning attorneys to its staff and developing similar policies regarding prosecution of drug offenders. Sterling Johnson, as the first Special Narcotics Prosecutor, is the official spokesman for the other district attorneys with respect to narcotics matters (H.Rep. No. SCNAC-96–2–15, 1980).

Identity-based crimes are one of the most significant and growing problems of the last 20 years and inflict significant economic harm to victims. The increased use and availability of personal information through on-line outlets has significantly increased the risk of identity-based fraud, although few have considered the factors that affect the likelihood of this type of victimization. (Holt &Turner, 2012, pg. 308).

Identity theft is not a new crime. Long before the internet, thieves used low-tech methods to obtain and misuse people’s credit and identification documents. Identity theft techniques include simple pickpocketing, “dumpster diving” for discarded financial records and credit card statements, stealing pre-approved credit card applications from mailboxes, completing “change of address” forms through the Post Office to divert a victim’s mail, and securing low-level employment with an organization to gain access to and steal consumers’ social security numbers, credit reports, and financial records. These techniques still account for most identity theft cases, but the Internet and the increased use of databases for storing consumer information has allowed high tech thieves easier access to greater quantities of individual information at one time. In the same amount of time it would take for a thief to monitor a physical mailbox and steal one individual’s new credit card, the thief can now set up a phishing scam and potentially steal hundreds or thousands of individuals’ personal identifying information (Lynch, 2005).

In the last twenty years, the internet has been increasingly used to commit identity theft. For example, “phishing” is a scheme involving “sending out fraudulent emails and viruses to attract unsuspecting customers to fake bank websites, requesting a person to enter bank account numbers and password” (Tcherni, Davies, Lopes & A. Lizotte, 2015). By obtaining personal identifying information (PII), a person can steal an identity for the purpose of committing various financial crimes. Identity theft and other financial frauds now have a cybercrime element. Identity theft is increasingly committed over the internet in “cyberspace.” Cyberspace is defined as “the environment within which communications and other online activities through Internet-enabled digital devices take place. This space has transformed the way in which individuals communicate, disclose, exchange, and retrieve information, develop and maintain relationships, and move money.” (Maras, 2017, pg.4).

When a person uses the Internet, computers and related technology in the commission of a crime, he or she is considered as a cybercriminal. Cybercrime can fall under the following six proposed typologies: cybertrespass and cybervandalism; cybertheft; interpersonal cybercrime; cyberdeviance and public order cybercrime; organized cybercrime; and political cybercrime” (Maras, 2017, pg. 4).

“Cybercriminals also engage in illicit acts that target websites, computers, and other digital devices.” (Maras, 2017, pg. 4).

Cybercriminals can attack, offend, threaten, humiliate, harass, steal from, and otherwise harm victims and exploit and damage computers and other technological devices. The crimes perpetrated by these actors are referred to as cybercrimes. This type of crime occurs on a far greater scale than traditional crime because of its ability to reach and affect individuals around the globe. Furthermore, cybercrime is not restricted by physical, geographical borders; instead, it transcends them (Maras, 2017, pg.4).

The advancement of computer technology and the development of the Internet have provided identity thieves with more options to obtain the necessary information to carry out their crime. Identity thieves may be able to obtain a victim’s personal information by hacking into a database, personal computer, or a company’s computer system. The Internet, therefore, allows a potential identity thief to obtain a victim’s personal information from her home, office, public library, hotel room, or any other location with Internet accessibility. Such easy access obviates the need for an identity thief to rummage through a victim’s garbage or mail, follow a victim to a supermarket, or any other conventional method of obtaining a victim’s personal information. Moreover, the Internet allows identity thieves to seek out victims from virtually anywhere in the world. Finally, the identity thief may carry out her crime via the Internet, regardless of how the victim’s personal information is obtained (Perl, 2003).

Lacking physical borders, the investigation and possible prosecution of identity theft in cyberspace can be troublesome for a variety of reasons.

When asked what legal and prosecution issues have been encountered, 67% cited the cross jurisdictional nature of digital crime. No agency reported a local prosecutor that would consider a crime that crosses international borders. Crimes of this type may need to be referred to the U.S. Attorney’s Office for consideration if it were a federal infraction. It was also found that 54% felt prosecutors did not understand technology, 49% felt judges did not understand technology, and 44% had difficulty enforcing out-of-state subpoenas. A further 41% indicated they encountered inconsistencies in interpretation of laws, such as a felony in one district may be a misdemeanor in another. Other findings were that 33% felt that laws were not keeping pace with technology, 28% face international threads, 18% encountered inadequate laws, and 15% encountered ethical breaches. Often it comes down to what can be prosecuted most effectively given the time, budget, and nature of the crime (Gogolin & Jones, 2010, pg. 138).

One problem that prosecutors often face when prosecuting identity theft is finding the appropriate venue in which to prosecute. For example, an identity thief living in state A may obtain the personal information of a victim domiciled in state B, and use that information to carry out her crime in state C or D. Moreover, an identity thief who carries out her crime, even in part, over the Internet can further complicate the venue determination. Recognizing this potential dilemma, some states allow prosecution to take place “in any locality where the person whose identifying information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in such locality” (Perl, 2003).

Considering the problems in investigating and prosecuting identity theft/financial frauds which can cross both international borders and state lines, some cases could result in federal prosecution (aggravated identity theft and associated wire fraud charges). Some U.S. Attorney’s Office have established guidelines with respect to what identity theft/financial frauds cases they will prosecute, usually set to a high dollar amount or cases involving numerous victims. According to Section 9–27.200 of The United States Department of Justice Principles of Federal Prosecution:

if the attorney for the government concludes that there is probable cause to believe that a person has committed a federal offense within his/her jurisdiction, he/she should consider whether to:

1. Request or conduct further investigation;
2. Commence or recommend prosecution;
3. Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
4. Decline prosecution and commence or recommend pretrial diversion or other non-criminal disposition; or
5. Decline prosecution without taking other action. (USDOJ, 9–27.200)

In deciding to accept a case, there should be a “substantial federal interest” which is defined in Section 9–27.230 of The United States Department of Justice Principles of Federal Prosecution as:

in determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
2. The nature and seriousness of the offense;
3. The deterrent effect of prosecution;
4. The person’s culpability in connection with the offense;
5. The person’s history with respect to criminal activity;
6. The person’s willingness to cooperate in the investigation or prosecution of others;
7. The person’s personal circumstances;
8. The interests of any victims; and
9. The probable sentence or other consequences if the person is convicted. (USDOJ, 9–27.230)

In U.S. Attorneys’ Offices, which are assigned to investigate crimes in district where located, the number of assistant United States attorneys (AUSAs) in a district depends on the population. The offices can also consider federal priorities/resources when deciding to take a case. In a heavily populated area, there are generally more local district attorney’s offices separated by counties. Both offices, however, are limited in several ways. Some factors that may limit an effective investigation and prosecution of identity theft/cyber identity theft by a federal or local district attorney’s office are office policy, the manpower and resources of the specific office, misinterpretation or obsolete knowledge of the current law, and the assigned prosecutor’s caseload.

Section 9–27.230 addresses “federal law enforcement priorities” (USDOJ, 2019):

Federal law enforcement resources are not sufficient to permit prosecution of every alleged offense over which federal jurisdiction exists. Accordingly, in the interest of allocating its limited resources so as to achieve an effective nationwide law enforcement program, from time to time the Attorney General may establish national investigative and prosecutorial priorities. These priorities are designed to focus federal law enforcement efforts on those matters within the federal jurisdiction that are most deserving of federal attention and are most likely to be handled effectively at the federal level, rather than state or local level. (USDOJ, 2019)

Depending on the administration, the priorities of prosecution could fall to other declared priorities such as, the opioid crisis or immigration, with less emphasis on financial crimes.

In 2011, the New York State Criminal Procedure Law (“CPL”), was amended to expand underlying factors in which identity theft offenses can be prosecuted in New York State. This was promulgated on June 24, 2011 giving New York expanded geographical jurisdiction for identity theft crimes and all crimes which are part of the same criminal transaction, such as larceny. This allowed for the prosecution of all related crimes in a single venue, which in theory would economize resources for the parties and the court (NYC Bar, 2011).

NYS CPL Section 20.40:

(l) An offense of identity theft or unlawful possession of personal identifying information and all criminal acts committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter may be prosecuted (i) in any county in which part of the offense took place regardless of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense.

It had been my experience as a detective assigned to an NYPD precinct detective squad for seven years and later the NYPD Financial Crimes Task Force, Special Frauds Squad for four years, that although law was changed in 2011 expanding the jurisdiction for identity theft prosecutions, the law did not completely solve the jurisdictional problems. For example, where jurisdictional boundaries spanned two or more counties within The City of New York, conflicts would arise as to which district attorney’s office would prosecute. Although probable cause existed, the jurisdiction with better standing sometimes would decline to prosecute directing that the case be brought to the other that had jurisdiction. Sometimes, the case was dismissed by one jurisdiction months into prosecution. These decisions were often made by prosecutors who did not know what the law provided nor did they know the elements of the criminal case and how to effectively apply the law.

Creating a special prosecutor’s office and modeling it after the Office of the Special Narcotics Prosecutor for New York City (OSNP) would provide for focused investigation and prosecution of identity theft, physical or cyber, and associated financial crimes. The OSNP was created in response to the rising drug epidemic.

An independent prosecutors’ office with citywide jurisdiction, the Office of the Special Narcotics Prosecutor (SNP) is responsible for felony narcotics investigations and prosecutions in the five boroughs of New York City. Founded in 1971, it is the only agency of its kind in the United States.

Created in response to a burgeoning heroin epidemic and a related spike in violent crime, SNP was granted broad authority under New York State Judiciary Laws to root out sophisticated narcotics trafficking organizations and track offenders across traditional jurisdictional boundaries.

The office’s far-reaching cases target major trafficking networks that distribute narcotics in the city, across the United States and around the world. Renowned for its expertise in wiretap investigations, SNP uses cutting-edge electronic technology to identify and pursue members of criminal enterprises from street-level dealers to top suppliers. Recognizing the link between drugs and violence, the office also investigates gang-related activity.

The office is committed to reducing demand for narcotics by raising public awareness and facilitating treatment for addicted offenders. Since assuming leadership of the office, Ms. Brennan established the Heroin Trafficking Interdiction Unit, the Prescription Drug Investigation Unit, the Digital Forensic Unit, the Narcotics Gang Unit and the Money Laundering and Financial Investigation Unit (Office of the Special Narcotics Prosecutor, 2016).

As stated, the office was “created in response to a burgeoning heroin epidemic and a related spike in violent crime” (Office of the Special Narcotics Prosecutor, 2016). The office, however, has a reform and rehabilitation component as noted “committed to reducing demand for narcotics by raising public awareness and facilitating treatment for addicted offenders” (Office of the Special Narcotics Prosecutor, 2016). It should also be noted that the office has evolved since inception to keep up to date with the latest technology and approach to combating narcotics trafficking such as creating a “Digital Forensics Unit” and is already abreast with the financial crimes aspect as referenced by the office’s “Money Laundering and Financial Investigation Unit.”

As with the creation of the OSNP, a creation or metamorphosis of the OSNP or otherwise incorporation of such to create identity theft/financial fraud special prosecutor’s office requires either executive action from the governor or legislative action from the New York State Legislature. Attempts have been made to lobby Albany but the proposed idea did not gain enough support.

Based upon my examination of past research, current sources, and my own professional experience, I have found that identity theft/financial fraud in various forms, whether committed in cyberspace or in the physical realm, necessitates not only specialized investigation but special prosecution due to the complexity that this particular crime presents. Therefore, an office of a special prosecutor, with prosecutors who specialize in these types of cases, should be created in every state to combat it.

BIBLIOGRAPHY

Gogolin, G. & Jones, J. (2010) Law Enforcement’s Ability to Deal with Digital Crime and the Implications for Business. Journal of Digital Forensic Practice, 3, 131–139 https://dx.doi.org/10.1080/15567281.2010.536737

Holt, T. & Turner, M. (2012) Examining Risks and Protective Factors of On-Line Identity Theft, Deviant Behavior 33, 308–323. https://doi.org/10.15779/Z38M67D

H. Rep. No. SCNAC-96–2–15, at 9 (1980) Retrieved on August 7, 2019 from https://www.ncjrs.gov/pdffiles1/Digitization/82216NCJRS.pdf

Lynch, J. (2005) Identity Theft in Cyberspace: Crime Control Methods and Their Effectiveness in Combating Phishing Attacks, Berkeley Tech L.J., 20 (1), 28, 259–300. https://doi.org/10.15779/Z38M67D

Maras, M. (2017). Cybercriminology. New York, NY: Oxford University Press. Retrieved from https://bookshelf.vitalsource.com/#/books/9780190278458/cfi/22!/4/4@0.00:0.912

Nadjari, M, H. (1974). New York State’s Office of the Special Prosecutor: A Creation Born of Necessity. Hofstra Law Review 2, 1, 97–128 http://scholarlycommons.law.hofstra.edu/hlr/vol2/iss1/3

New York City Bar. (2011). New York Expands the Geographical Jurisdiction for Offenses of Identity Theft. Retrieved on August 8, 2019 from https://www.nycbar.org/id-theft-expanded.

New York State Criminal Procedure Law, Section 20.40 (l) (2011)

Office of the Special Narcotics Prosecutor for the City of New York (2016). About Us. Retrieved on August 8, 2019 from http://www.snpnyc.org/about-us/

Perl, M, W. (2003) It’s Not Always about the Money: Why the State Identity Theft Laws Fail to Adequately Address Criminal Record Identity Theft, J. Crim. L. & Criminology, 94, 1, 5 169–208. Retrieved on August 7, 2019 from https://scholarlycommons.law.northwestern.edu/jclc/vol94/iss1/5

The United States Dept. of Justice, Principles of Federal Prosecution 9–27.000 (2018), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution

The United States Dept. of Justice, Principles of Federal Prosecution 9–27.200,

Initiating and Declining Prosecution-Probable Cause Requirement (2018), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.200

The United States Dept. of Justice, Principles of Federal Prosecution 9–27.230,

Initiating and Declining Prosecution-Substantial Federal Interest (2019), https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.230