Nov 022010
 
 November 2, 2010  Breaches, Court, Laws, U.S.

There was a court decision in Colorado recently that I didn’t cover on this site because the decision supposedly wouldn’t have much impact going forward in light of a new law that had gone into effect.   The case involved a man who used his own name, address, and details to apply for a loan, but used someone else’s Social Security Number.  The court held that given how much genuine information he had provided about himself, his actions did not constitute “criminal impersonation.”

The Identity Theft Resource Center did not like that decision and has issued a press release:

(November 1, 2010, San Diego CA)  The Colorado Supreme Court recently over-ruled (4-3) a lower court decision that convicted a man of criminal impersonation when he fraudulently used the Social Security number (SSN) of another when applying for a car loan.  The trial and appellate court in Montes-Rodriguez v. People found that Mr. Montes-Rodriguez defrauded a car dealership which required an SSN on its loan application.  The Supreme Court however held that since Montes-Rodriguez used his own name, birth date and address, the use of another person’s SSN was not criminal impersonation even though he had also used it for employment as well.

The Identity Theft Resource Center concurs with the three dissenting judges.  The use of a false SSN even without using the victim’s name is one of the core issues of identity theft, whether the SSN has been issued or fabricated.  As Justice Coats said,  “Because I consider the defendant’s deliberate misrepresentation of the single most unique and important piece of identifying data for credit-transaction purposes to be precisely the kind of conduct meant to be proscribed as criminal by this statute.” (18-5-113 Criminal Impersonation).

This is further validated by Section 603.2 of the Federal Fair Credit Reporting Act (FCRA) which states that “identity theft is a fraud committed or attempted using the identifying information of another without permission.”  That section specifically states that the unauthorized use of another’s SSN is Identity theft.

By using a SSN which was not issued to the defendant, he assumed the capacity to gain a benefit – in this case, a car loan (and a job) he would not have received if he used his own SSN, which apparently he did not have.  This act defrauded the car dealership and the woman whose SSN was used without her permission.

Attorney Mari Frank, frequently called as an expert witness to testify in court , before legislative hearings and who teaches law classes in identity theft, said: “ This 4 to 3 decision demonstrates that false identification and identity theft are still misunderstood by the ‘majority’ of people including judges.  For far too long, the courts and industry have not taken identity theft seriously and here is but another example.  Clearly the woman whose SSN was used already was hampered by the fraud appearing on her credit report as an inquiry.  If the defendant stops payment, all the creditors with whom he has established credit with using this SSN will demand payment from the woman who was issued this number. If he doesn’t pay taxes, the IRS will call upon the victim.  It might even impede her ability to get a job.  I have seen victims trying to unravel the challenging mixed file mess numerous times.”

ITRC is very concerned by this decision.  Identity theft crimes are evolving daily.  It is critical that law makers, law enforcement, and the judicial system stay abreast of the actions of identity thieves.  Semantics must not get in the way of “intent.”  In over-ruling the lower court, the Colorado State Supreme Court has implied it is permissible to use an SSN that was not issued to an individual to establish new lines of credit.  That was not the intent of the Colorado statute or that of the FCRA. This is a dangerous precedent that has now been established and which could permit abuses of the system designed to protect innocent bystanders from fraud.

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