Identity Theft: Myths, Methods, and New Law
Holly K. Towle · Rutgers computer & technology law journal · 2004
I. INTRODUCTION For centuries, philosophers have considered concept of human identity, (1) notion that refers to an individual's sense of self and distinguishes one individual from another. In modern society, not only does one's identity--and ability to prove it--serve to distinguish one person from another, but it also plays an obvious role in many of today's commercial and personal transactions. Doctors need to disclose medical records only to their patients; buyers of real estate need to know that persons signing deed really are ones who own property; vendors need to know that person purporting to purchase product on behalf of company really is employee authorized to do so; governments need to know that person claiming benefits is person entitled to them; and police need to know who they are actually arresting. Identity theft has been described as one of fastest growing crimes in nation, (2) and the crime of new millennium. (3) If so, certainly there is need to understand what identity theft is and its legal underpinnings. Hence, this article is intended to explain what identity theft is, how it happens and legal responses to it. This article includes an extensive discussion of latest federal response, Fair and Accurate Credit Transactions Act of 2003 (FACT), as well as discussion of state statutory and common laws. Finally, article ends with suggestions for how to avoid identity theft. In one sense there is nothing new here given that determining with whom one is really dealing has always been important. However, making that determination becomes more complex when e-commerce is involved (4) because there is no interaction and documents, such as driver's license picture or handwritten signature, cannot be easily examined. Data can be collected that tends to identify person, such as social security number, telephone number, maiden name, birth date and like. However, laws increasingly restrict that collection, and some identifiers may be public information or discoverable with an ease that may make information of questionable use. This situation provides opportunity for illegal activity which can be exacerbated in electronic settings. The reality, however, is that opportunity for identity theft has always existed and that methods for illegal activities cannot be ignored. For example, 2003 Federal Trade Commission (FTC) survey indicated that a lost or stolen wallet or pocket book, or theft of victim's mail including lost or stolen credit checkbooks, and social security cards, were most commonly mentioned ways that an identity thief obtained information. (5) This was 25% of those who knew how their information was obtained; group which accounts for 51% of all victims (leaving almost half of victims not knowing how their personal information was obtained). (6) Identity thieves also include persons who give name of another person in order to delay or avoid being charged with crime. In fact, there is nothing more face-to-face or non-electronic than an arrest. The likely difference between now and yesterday is not difference between online and offline activities, but changes in technology which generally allow thieves to do more, online or off: At one time, not that many years ago, breeder document, such as driver's license, meant something; it could be used to establish person's identity with little or no question. Now, technology has enabled criminals to produce fraudulent documents, which can be used to procure additional fraudulent documents. Counterfeit documents, such as credit used to be easily detectable; now it is relatively easy to produce counterfeit hologram that usually passes for real thing..... Technology and ability of criminal element to adapt and defeat existing identification methodologies, predicated on breeder documents that are susceptible to counterfeiting, have made it necessary to develop different, more advanced identity authentication systems. …