Identity Theft Practice Center
Legal Remedies for Identity Theft
The body of law that deals with identity theft is large and evolving, criminal and civil, state and federal. If your important private identifying information is stolen and you become the victim of identity theft or identity fraud, an attorney well versed in consumer protection from Thomas R. Breeden, P.C. in Manassas, Virginia, can educate you about the law and advise you about possible legal remedies.
Criminal Law
Identity theft, in and of itself, is a federal crime and a state crime in many states. Behavior constituting identity theft may also violate other federal and state criminal statutes. In some circumstances, punishment for the crime may include an order that the identity thief provide restitution to the victim. Some states’ criminal codes provide that identity theft victims may sue their perpetrators for damages and some states even set forth the formula for calculating those damages.
Civil Lawsuits Based on Statutes or Constitutions
In some jurisdictions and situations, victims may bring lawsuits based on violations by third parties of federal or state privacy or consumer protection laws. These third parties can include entities such as businesses or financial institutions with legal obligations to safeguard information they possess about individuals. A specific example is the federal Fair Credit Reporting Act (FCRA) that provides for civil lawsuits against credit reporting agencies or furnishers of credit information to those agencies if they violate the Act to the detriment of identity theft victims. Some victims may be able to sue for constitutional violations, such as of the right to privacy, or under civil rights laws.
State Common Law Remedies
A victim of identity theft may have various state common law remedies. These may include lawsuits for negligence, fraud, misrepresentation, invasion of privacy, breach of fiduciary duty, defamation, breach of contract, negligent or intentional infliction of emotional distress, and others, depending on the state law and the circumstances. The types of recoverable damages will also vary, but common questions include whether under the circumstances damages for future potential financial losses are available, or whether punitive damages meant to punish the wrongdoer are available.
Preemption by Federal Law
A developing issue is the extent to which federal identity theft law preempts state identity theft law. Under our constitutional system, federal law preempts, or supersedes, inconsistent state law on the same topic. Courts continue to look at the extent to which federal remedies for identity theft may constrain available state remedies. If you explore your legal remedies for identity theft, this is a complex issue on which a lawyer can advise you.
Duty to Mitigate Damages
Identity theft victims are often required to mitigate their damages in a lawsuit. This means that the victim must take reasonable steps to contain the damage, which might include closing accounts, changing passwords, reporting the crime, filing an FTC complaint, or other logical remedial actions. When a victim has the ability to contain the financial damage resulting from the identity theft, sometimes the failure to do so could restrict his or her recovery in a lawsuit for those damages.
Conclusion
This is a brief overview of the breadth of possible legal remedies available to an identity theft victim. An experienced, skilled lawyer at Thomas R. Breeden, P.C. in Manassas, Virginia, can advise you about your potential legal remedies in your particular circumstances.
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