Massachusetts G.L. c. 266, § 37E: Identity Fraud
If your charging documents reference G.L. c. 266, § 37E, you have been charged with identity fraud. That can mean using someone else's name or information, obtaining that information without permission, or possessing a device built to capture it.
The charge reaches conduct that never involved taking a dollar from anyone, and a conviction carries mandatory restitution. Understanding what the Commonwealth actually has to prove is the first step.
Call (978) 969-2890 for a free consultation.
You Just Got Charged. Here's What You Need to Know.
For over 30 years, we have helped people through exactly what you're experiencing right now. A section 37E charge usually arrives out of nowhere, in a case built on account records, screenshots and login histories rather than witnesses. We have represented people facing identity fraud charges and know how these cases are investigated, where the Commonwealth's proof tends to be thin, and what outcomes are realistically available.
Call (978) 969-2890 for a free consultation.
Call (978) 969-2890 for a free consultation.
What Does G.L. c. 266, § 37E Prohibit?
Section 37E creates three separate offenses, and a complaint can charge any one of them.
The first is posing as another person. It is a crime to falsely represent yourself, directly or indirectly, as someone else without that person's express authorization, and to use their personal identifying information to obtain or attempt to obtain money, credit, goods, services, anything of value, an identification card or other evidence of their identity, or to harass another person.
The second is obtaining the information. It is a crime to obtain another person's personal identifying information without their express authorization, intending either to pose as that person or to help someone else pose as that person, for those same purposes. Nothing has to be successfully obtained with the information. The offense is complete once the information is taken with that intent.
The third is possessing a data theft device. It is a crime to possess a tool, instrument or other article that is adapted, designed or commonly used for reaching another person's financial, savings, checking, brokerage, credit card or debit card account numbers or codes, automated teller machine codes, personal identification numbers, mother's maiden name, computer passwords, electronic signatures, or biometric data such as a fingerprint, voice print, retinal image or iris image, under circumstances showing an intent to use it, or knowledge that some other person intends to use it, to commit a larceny.
The statute defines personal identifying information broadly: any name or number that can be used, alone or together with other information, to assume a person's identity. It lists a name, address, telephone number, driver's license number, Social Security number, place of employment, employee identification number, mother's maiden name, deposit, savings or credit card account numbers, and computer passwords, and that list is not closed.
Two practical points are worth knowing. The harass branch requires no financial motive at all, so an account opened in someone else's name to torment them can be charged as identity fraud even though nothing of value was ever sought. And section 37E allows a police officer to arrest without a warrant on probable cause, which is unusual for a misdemeanor.
The first is posing as another person. It is a crime to falsely represent yourself, directly or indirectly, as someone else without that person's express authorization, and to use their personal identifying information to obtain or attempt to obtain money, credit, goods, services, anything of value, an identification card or other evidence of their identity, or to harass another person.
The second is obtaining the information. It is a crime to obtain another person's personal identifying information without their express authorization, intending either to pose as that person or to help someone else pose as that person, for those same purposes. Nothing has to be successfully obtained with the information. The offense is complete once the information is taken with that intent.
The third is possessing a data theft device. It is a crime to possess a tool, instrument or other article that is adapted, designed or commonly used for reaching another person's financial, savings, checking, brokerage, credit card or debit card account numbers or codes, automated teller machine codes, personal identification numbers, mother's maiden name, computer passwords, electronic signatures, or biometric data such as a fingerprint, voice print, retinal image or iris image, under circumstances showing an intent to use it, or knowledge that some other person intends to use it, to commit a larceny.
The statute defines personal identifying information broadly: any name or number that can be used, alone or together with other information, to assume a person's identity. It lists a name, address, telephone number, driver's license number, Social Security number, place of employment, employee identification number, mother's maiden name, deposit, savings or credit card account numbers, and computer passwords, and that list is not closed.
Two practical points are worth knowing. The harass branch requires no financial motive at all, so an account opened in someone else's name to torment them can be charged as identity fraud even though nothing of value was ever sought. And section 37E allows a police officer to arrest without a warrant on probable cause, which is unusual for a misdemeanor.
Identity Fraud vs. Credit Card Fraud
These two charges grow out of the same conduct so often that they are routinely confused, and they are frequently charged together from a single incident.
G.L. c. 266, § 37E: Identity Fraud — Reaches the identity itself. What matters is that you represented yourself as another person, or took that person's identifying information, with an intent to defraud. No purchase has to go through, and no card has to exist at all.
G.L. c. 266, § 37C: Fraudulent Use of a Credit Card — Reaches the use of a particular instrument, a credit card used without the cardholder's authority, to obtain money, goods or services. It is built around the transaction rather than around who you claimed to be.
In practice the evidence drives the charging decision. A card recovered in someone's hand or wallet points toward section 37C. An online order placed with a stolen name, address and account number, where no physical card was ever involved, points toward section 37E. Where both are charged, they carry different elements, and a weakness in one does not necessarily reach the other.
G.L. c. 266, § 37E: Identity Fraud — Reaches the identity itself. What matters is that you represented yourself as another person, or took that person's identifying information, with an intent to defraud. No purchase has to go through, and no card has to exist at all.
G.L. c. 266, § 37C: Fraudulent Use of a Credit Card — Reaches the use of a particular instrument, a credit card used without the cardholder's authority, to obtain money, goods or services. It is built around the transaction rather than around who you claimed to be.
In practice the evidence drives the charging decision. A card recovered in someone's hand or wallet points toward section 37C. An online order placed with a stolen name, address and account number, where no physical card was ever involved, points toward section 37E. Where both are charged, they carry different elements, and a weakness in one does not necessarily reach the other.
What the Prosecution Must Prove
To convict you, the Commonwealth must prove every element beyond a reasonable doubt. Because section 37E creates three offenses with different element lists, the first question in any case is which one you are actually charged with.
Posing as another person, section 37E(b). Four elements:
1. Posing — You falsely represented yourself, directly or indirectly, as another person.
2. Without authorization — You did so without that person's express permission.
3. Use of that person's information — You used their personal identifying information, either to obtain or attempt to obtain money, credit, goods, services, anything of value, an identification card or evidence of their identity, or to harass another person.
4. Intent to defraud — You acted with the intent to defraud.
Obtaining personal identifying information, section 37E(c). Five elements:
1. Obtaining the information — You obtained personal identifying information about another person.
2. Without authorization — You did so without that person's express permission.
3. Intent to pose — You did so intending to pose as that person, or to help someone else pose as that person.
4. Purpose — You did so in order to obtain money, credit, goods, services, anything of value, an identification card or evidence of that person's identity, or to harass another person.
5. Intent to defraud — You acted with the intent to defraud.
Possessing a data theft device, section 37E(c½). Three elements:
1. Possession of a device — You possessed a tool, instrument or other article.
2. What the device is for — It was adapted, designed or commonly used for reaching another person's account numbers or codes, personal identification number, mother's maiden name, computer password, electronic signature, or biometric data.
3. Intent to use it for larceny — You intended to use it, or knew that some other person intended to use it, to commit a larceny.
Every element has to be proven, and in most of these cases the fight is over two of them: authorization and intent. Express permission from the person whose information was used defeats the charge, and the Commonwealth has to prove an intent to defraud rather than assume it from the fact that the information was used at all.
Posing as another person, section 37E(b). Four elements:
1. Posing — You falsely represented yourself, directly or indirectly, as another person.
2. Without authorization — You did so without that person's express permission.
3. Use of that person's information — You used their personal identifying information, either to obtain or attempt to obtain money, credit, goods, services, anything of value, an identification card or evidence of their identity, or to harass another person.
4. Intent to defraud — You acted with the intent to defraud.
Obtaining personal identifying information, section 37E(c). Five elements:
1. Obtaining the information — You obtained personal identifying information about another person.
2. Without authorization — You did so without that person's express permission.
3. Intent to pose — You did so intending to pose as that person, or to help someone else pose as that person.
4. Purpose — You did so in order to obtain money, credit, goods, services, anything of value, an identification card or evidence of that person's identity, or to harass another person.
5. Intent to defraud — You acted with the intent to defraud.
Possessing a data theft device, section 37E(c½). Three elements:
1. Possession of a device — You possessed a tool, instrument or other article.
2. What the device is for — It was adapted, designed or commonly used for reaching another person's account numbers or codes, personal identification number, mother's maiden name, computer password, electronic signature, or biometric data.
3. Intent to use it for larceny — You intended to use it, or knew that some other person intended to use it, to commit a larceny.
Every element has to be proven, and in most of these cases the fight is over two of them: authorization and intent. Express permission from the person whose information was used defeats the charge, and the Commonwealth has to prove an intent to defraud rather than assume it from the fact that the information was used at all.
Penalties Under Massachusetts Law
Identity fraud is a misdemeanor in Massachusetts. Every branch of section 37E carries the same maximum, and the statute creates no enhanced penalty for a second or later offense.
Criminal Penalties
● Up to 2½ years in a house of correction, a fine of up to $5,000, or both
● The same maximum applies whether the charge is posing as another person, obtaining someone's information, or possessing a data theft device
● The same maximum applies whether the charge is posing as another person, obtaining someone's information, or possessing a data theft device
Restitution
● Restitution comes on top of any other penalty, and in practice it is ordered as a condition of both a guilty finding and a continuance without a finding
● It covers more than the money or goods obtained: the statute reaches the cost of repairing the person's credit history, the cost of civil or administrative proceedings to clear the debt, lost wages and attorney's fees
● It covers more than the money or goods obtained: the statute reaches the cost of repairing the person's credit history, the cost of civil or administrative proceedings to clear the debt, lost wages and attorney's fees
Collateral Consequences
● A criminal record showing an offense of dishonesty, which employers weigh more heavily than most misdemeanors
● Difficulty obtaining housing (landlord background checks)
● Professional licensing consequences, particularly in finance, insurance, healthcare and real estate
● Immigration consequences for non-citizens
● Firearms licensing: because the maximum penalty here is more than two years, a conviction makes a person a prohibited person under the Massachusetts firearms licensing law
● A restitution obligation that can follow you long after the case itself has ended
● Difficulty obtaining housing (landlord background checks)
● Professional licensing consequences, particularly in finance, insurance, healthcare and real estate
● Immigration consequences for non-citizens
● Firearms licensing: because the maximum penalty here is more than two years, a conviction makes a person a prohibited person under the Massachusetts firearms licensing law
● A restitution obligation that can follow you long after the case itself has ended
Related Criminal Charges
● G.L. c. 266, § 37C: Fraudulent Use of a Credit Card — Charged when the alleged fraud runs through a particular card rather than through the identity itself.
● G.L. c. 267, § 1: Forgery — Charged when a document or a signature was falsely made as part of the scheme.
● G.L. c. 267, § 5: Uttering — Charged when a forged document was passed off as genuine.
● G.L. c. 266, § 30: Larceny — Charged alongside identity fraud when money, goods or services were actually obtained.
● G.L. c. 265, § 43A: Criminal Harassment — Charged when an impersonation was used to torment a person rather than to obtain anything of value.
Related Practice Area: Identity Fraud Defense
● G.L. c. 267, § 1: Forgery — Charged when a document or a signature was falsely made as part of the scheme.
● G.L. c. 267, § 5: Uttering — Charged when a forged document was passed off as genuine.
● G.L. c. 266, § 30: Larceny — Charged alongside identity fraud when money, goods or services were actually obtained.
● G.L. c. 265, § 43A: Criminal Harassment — Charged when an impersonation was used to torment a person rather than to obtain anything of value.
Related Practice Area: Identity Fraud Defense
Defending Against Identity Fraud Charges
These cases are built almost entirely on records: account statements, login and IP data, store video, delivery addresses, and phone extractions. That kind of evidence is good at showing that something happened and much weaker at showing who did it. In most section 37E cases the Commonwealth's soft spot is identity itself, tying the person in the courtroom to the account, the device, or the transaction.
The second pressure point is authorization and intent. Every branch of the statute requires an intent to defraud, and a great deal of what gets charged grows out of shared passwords, family members using each other's accounts, joint finances, a business dispute, or a person who reasonably believed they had permission. Express authorization defeats the charge, and the Commonwealth carries the burden of proving its absence beyond a reasonable doubt.
We look at how the records were obtained and whether the search that produced them was lawful, whether the identification holds up, whether the alleged victim actually withheld permission, and whether anything ties the login or the device to our client at all. Call (978) 969-2890 for a free consultation.
The second pressure point is authorization and intent. Every branch of the statute requires an intent to defraud, and a great deal of what gets charged grows out of shared passwords, family members using each other's accounts, joint finances, a business dispute, or a person who reasonably believed they had permission. Express authorization defeats the charge, and the Commonwealth carries the burden of proving its absence beyond a reasonable doubt.
We look at how the records were obtained and whether the search that produced them was lawful, whether the identification holds up, whether the alleged victim actually withheld permission, and whether anything ties the login or the device to our client at all. Call (978) 969-2890 for a free consultation.
What To Do Right Now
If you have been charged under G.L. c. 266, § 37E, what you do over the next few days matters.
● Do not talk to police without a lawyer present
● Do not discuss your case with anyone except your attorney
● Do not post anything about your case on social media
● Preserve your account records and any messages showing you were given permission
● Write down who had access to your devices, accounts and passwords, and when
Contact an experienced Massachusetts criminal defense attorney immediately.
Call (978) 969-2890. We answer 24/7.
● Do not talk to police without a lawyer present
● Do not discuss your case with anyone except your attorney
● Do not post anything about your case on social media
● Preserve your account records and any messages showing you were given permission
● Write down who had access to your devices, accounts and passwords, and when
Contact an experienced Massachusetts criminal defense attorney immediately.
Call (978) 969-2890. We answer 24/7.
We're Here To Help
A charge under G.L. c. 266, § 37E is serious, but it is also a charge that is often defensible and frequently resolved without a conviction.
We have spent over 30 years helping people through charges like this one and understand how to work toward the best possible outcome. A free consultation gives you the opportunity to understand your charges and options. Everything we discuss is confidential. Go here if you want to know why working with us is the right choice.
Call (978) 969-2890 for a free consultation. Serving Greater Boston and Eastern Massachusetts.
H. Ernest Stone, Attorney PC
900 Cummings Center, Suite 321-U
Beverly, MA 01915
Phones answered 24/7 by a real person.
We have spent over 30 years helping people through charges like this one and understand how to work toward the best possible outcome. A free consultation gives you the opportunity to understand your charges and options. Everything we discuss is confidential. Go here if you want to know why working with us is the right choice.
Call (978) 969-2890 for a free consultation. Serving Greater Boston and Eastern Massachusetts.
H. Ernest Stone, Attorney PC
900 Cummings Center, Suite 321-U
Beverly, MA 01915
Phones answered 24/7 by a real person.
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