Several recent high-profile criminal cases have highlighted the dynamic nature of identity crimes in a modern digital era and the boundaries prosecutors sometimes push to squeeze arguably wrongful conduct into an outdated legal framework. In many cases, two federal statutes—18 U.S.C § 1028 and § 1028A—provide prosecutors with potent tools to aggressively pursue online identity thieves. But the broadly defined terms of these provisions may also expose innocent par- ties to criminal liability.
This Note argues that broadly defined federal identity-fraud statutes facilitate unconstitutional restrictions on protected speech. Specifically, this Note maintains that § 1028 and § 1028A are defined in vague and overbroad statutory terms that criminalize expressive conduct and chill protected speech. Left unchecked, these statutes expose institutional journalists, online commentators, and ordinary citizens to criminal liability for nothing more than sharing a hyperlink. This Note then concludes by presenting three potential routes to eliminate these unconstitutional restrictions and protect the Internet’s role as a unique communication medium.