May 2011Volume 99Number 5Page 222

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Part of Illinois’s Identity Theft Law found unconstitutional

The Illinois Supreme Court overturns a provision of Illinois’ identity theft statute, finding that it criminalizes innocent conduct (e.g., Google searching) performed without criminal intent.

Already a hot topic during the Internet Age, fear of identity theft has only gotten hotter with the popularity of social networking. To address the fear, legislatures, including Illinois’s, have enacted statutes aiming to curb would-be information bandits.

But in their zeal to remedy a perceived evil, legislatures sometimes unthinkingly criminalize even innocent and harmless activity. For that reason, in late March, the Illinois Supreme Court held a portion of Illinois’s identity theft statute unconstitutional. The case is People v Madrigal, No 110194, 2011 WL 1074427 (Ill Sup Ct).

Madrigal facts

The Identity Theft Law is found at 720 ILCS 5/16G–1 et seq. Madrigal, who worked at a Kane County insurance company, was charged on one count of identity theft in violation of section 16G-15(a)(7), which provides that a person commits the offense of identity theft when he or she knowingly “uses any personal identification information or personal identification document of another for the purpose of gaining access to any record of the actions taken, communications made or received, or other activities or transactions of that person, without the prior express permission of that person.”

In the indictment, the state alleged that Madrigal had knowingly used personal identification information of one Gabriela Vasquez, that is, Vasquez’s name, date of birth, and address, “to gain access to a record of actions taken, activities or transactions of” Vasquez without Vasquez’s prior express permission. A first violation of the statute is a Class 3 felony, punishable by up to five years in prison.

Madrigal moved to dismiss the indictment, arguing, among other matters, that the subparagraph of the statute under which she was charged was unconstitutional in that it failed to require a culpable mental state and, therefore, could be read to apply to completely innocent conduct. The circuit court agreed and found that paragraph 16G-15(a)(7) was unconstitutional on its face, violating substantive due process under both the federal and state constitutions, and could not be reasonably construed in a manner that preserved its constitutionality. The matter proceeded directly to the supreme court under SCR 603.

No criminal purpose

Quoting all seven subparagraphs of section 16G-15(a) of the Identity Theft Law, the supreme court observed that the first five required a criminal purpose in addition to the general knowledge that one was committing the actions proscribed. Those five not only were not at issue but also, the court said, clearly would not punish potentially innocent conduct.

Subparagraph (7), however, required no criminal intent, knowledge, or purpose in order to subject a person to a felony conviction and punishment, the court said. The section “would potentially punish as a felony a wide array of wholly innocent conduct,” including doing a search of someone using Google or Facebook, calling a repair shop to find out whether a spouse’s car was ready and how much it cost, or doing biographical, genealogical, or journalistic work.

Because of the lack of any requirement of a criminal mental state, “the statute potentially punishes a significant amount of wholly innocent conduct not related to the statute’s purpose.” The court found that the provision was not a rational means of addressing identity theft and was an invalid exercise of the state’s police power.

Therefore, the court affirmed the circuit court’s judgment that paragraph 16G-15(a)(7) was unconstitutional under both the state and federal constitutions. (The court observed that subparagraph (a)(6) appeared to suffer from the same deficiency as subparagraph (7), but, since it was not at issue, made no ruling on its constitutionality.)

“The Google statute”

Concluding its opinion, the court said combating identity theft is a laudable goal and encouraged the legislature to enact an amended subparagraph (a)(7) that would cure the provision’s constitutional defect. But St. Charles lawyer Donald R. Zuelke, who represented Madrigal, isn’t convinced that the law needs amending.

Though he doesn’t doubt the legislature’s good intentions in passing the law, Zuelke said subparagraph (a)(7) “took totally innocent conduct that we all engage in every day and made it a crime.” Using personal information as innocuous as an old friend’s name in a search engine to reconnect and learning that the person had moved, Zuelke said, was a felony under the portion of the statute that is now void.

Characterizing the invalidated subparagraph as “the Google statute,” Zuelke said, “Identity theft can ruin someone’s life, and it’s a good thing that we have laws outlawing it. But all of the paragraphs of the identity theft statute that are still intact still punish true identity theft, which is taking someone’s personal information and committing a crime with it.”

Helen W. Gunnarsson is a lawyer and writer in Highland Park. She can be reached at <>

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