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University of Chicago Law Review

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1289

Abstract

The Identity Theft Penalty Enhancement Act (ITPEA) increases penalties for crimes that involve the unlawful use of another person’s identifying information. A subsection of the ITPEA—the aggravated identity theft provision—imposes a mandatory two-year sentencing enhancement on a defendant who “uses” a means of identification of another person during and in relation to a predicate felony. Currently, federal circuit courts disagree about whether the term “uses” in the statute is ambiguous and whether the rule of lenity should consequently apply to narrow its reach. On the one hand, courts that have held the statute to be ambiguous apply the rule of lenity to hold that a defendant qualifies for the enhancement only if the defendant has directly impersonated another person. On the other hand, courts that have held the statute to be unambiguous reason that the plain text of the statute demands that the defendant need only generally misuse another’s information in the facilitation of fraud.

This Comment argues that the rule of lenity is improper in the context of the aggravated identity theft provision because a variety of interpretive tools are available and operative. For that reason, courts should apply the statute in accordance with its broad plain meaning by construing “uses” as requiring only general misuse of another person’s identifying information. This reading draws support from an analogous case in a comparable criminal context, interactions between interpretive canons, and legislative history found in the amendment notes to the ITPEA. This reading also provides practical benefits for courts assessing these issues in a contemporary technological landscape rife with digital political dissent and vigilante hacktivism.

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