AN ACT

RELATING TO CRIMINAL LAW; CREATING A NEW CRIMINAL OFFENSE KNOWN AS OBTAINING IDENTITY BY ELECTRONIC FRAUD; INCREASING A PENALTY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 30-16-24.1 NMSA 1978 (being Laws 2001, Chapter 138, Section 1) is amended to read:

     "30-16-24.1. THEFT OF IDENTITY--OBTAINING IDENTITY BY ELECTRONIC FRAUD.--

          A. Theft of identity consists of willfully obtaining, recording or transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another.

          B. Obtaining identity by electronic fraud consists of knowingly and willfully soliciting, requesting or taking any action by means of a fraudulent electronic communication with intent to obtain the personal identifying information of another.

          C. As used in this section:

                (1) "fraudulent electronic communication" means a communication by a person that is an electronic mail message, web site or any other use of the internet that contains fraudulent, false, fictitious or misleading information that depicts or includes the name, logo, web site address, email address, postal address, telephone number or any other identifying information of a business, organization or state agency, to which the person has no legitimate claim of right; and

                (2) "personal identifying information" means information that alone or in conjunction with other information identifies a person, including the person's name, address, telephone number, driver's license number, social security number, place of employment, maiden name of the person's mother, demand deposit account number, checking or savings account number, credit card or debit card number, personal identification number, passwords or any other numbers or information that can be used to access a person's financial resources.

          D. Whoever commits theft of identity is guilty of a fourth degree felony.

          E. Whoever commits obtaining identity by electronic fraud is guilty of a fourth degree felony.

          F. Prosecution pursuant to this section shall not prevent prosecution pursuant to any other provision of the law when the conduct also constitutes a violation of that other provision.

          G. In a prosecution brought pursuant to this section, the theft of identity or obtaining identity by electronic fraud shall be considered to have been committed in the county:

                (1) where the person whose identifying information was appropriated, obtained or sought resided at the time of the offense; or

                (2) in which any part of the offense took place, regardless of whether the defendant was ever actually present in the county.

          H. A person found guilty of theft of identity or of obtaining identity by electronic fraud shall, in addition to any other punishment, be ordered to make restitution for any financial loss sustained by a person injured as the direct result of the offense. In addition to out-of-pocket costs, restitution may include payment for costs, including attorney fees, incurred by that person in clearing the person's credit history or credit rating or costs incurred in connection with a civil or administrative proceeding to satisfy a debt, lien, judgment or other obligation of that person arising as a result of the offense.

          I. The sentencing court shall issue written findings of fact and may issue orders as are necessary to correct a public record that contains false information as a result of the theft of identity or of obtaining identity by electronic fraud."

          Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.