It's not always about the money: why the state identity theft laws fail to adequately address criminal record identity theft.

• Author: Perl, Michael W.

1. INTRODUCTION

   In October of 1995, Joshua Sours received a letter from Kohl's department store stating that "he owed money to the store in restitution for theft." (1) In fact, Sours's criminal record showed convictions for retail theft and possession of marijuana. (2) The problem was that Sours did not commit these offenses, was never arrested, never appeared in court, and never pled guilty to the offenses. (3)

   So what happened to Joshua Sours? Upon receiving the letter from Kohl's, Sours informed police authorities that something was wrong. (4) A subsequent investigation revealed that when the suspect of the Kohl's theft was arrested, he identified himself as Joshua Sours, attended one hearing, pled guilty to the charges, was sentenced to a day in jail, and was then released by authorities. (5) When Sours learned of these past events, a "quick look at the police photo" clarified what had happened. (6) Sours realized that the true perpetrator of the crimes was actually a high school friend, using Sours's identity to protect himself from obtaining a tainted criminal record. (7)

   Sours was a victim of criminal record identity theft, (8) a form of identity theft whose popularity continues to rise throughout the country. (9) Criminal record identity theft occurs when the identity thief obtains a victim's personal information (10) and then commits crimes, traffic violations, or other illegal activities while acting as the victim. (11) Instead of providing law enforcement with her own personal information, the identity thief provides the victim's personal information in order for the identity thief to avoid criminal convictions and legal sanctions in her own name. (12) This Comment will address this specific form of identity theft in further detail.

   Although identity theft is a crime in almost every state, (13) as well as a federal felony, most state identity theft laws need to be amended to adequately detect, prevent, and prosecute criminal record identity theft because most identity theft prosecutions occur at the state level. (14) This Comment will explore the current state identity theft laws in detail and explain the provisions that are necessary to comprehensively address criminal record identity theft.

   Before addressing the identity theft laws in more detail, Part II will provide some general background information about the crime of identity theft. It will explain the specific ways an identity thief obtains a victim's personal information and the various ways in which the thief may use that information, including criminal record purposes. Part III will then examine the current identity theft laws to see if and how these laws address criminal record identity theft. It will explain that although some states recognize criminal record identity theft as a crime, many states treat criminal record and financial identity theft differently in various ways. (15) It will also explain that the current laws fail to adequately address the statute of limitations issue as well as "reverse criminal record identity theft," a specific form of criminal record identity theft. (16) Finally, Part IV will explore two potential ways that the problem of criminal record identity theft may be better controlled. (17)

2. BACKGROUND

   Identity theft is the fastest growing crime in the United States. (18) Due to the widespread growth of identity theft, in 1999 the Federal Trade Commission ("FTC") began collecting consumer complaints (19) related to identity theft in the Identity Theft Clearinghouse. (20) Between 2000 and 2001 alone, both the numbers of inquiries to the FTC related to identity theft and the reported identity theft victims nearly tripled. (21) Moreover, the FTC reports that the number of identity theft claims more than doubled between 2001 and 2002. (22) Thus, with the number of incidents of identity theft reported to the FTC between 2000 and 2002 increasing from nearly 31,000 to about 162,000, today there are more than five times as many reported incidents of identity theft as there were only three years ago. (23)

   Identity theft is "the theft of identity information such as a name, date of birth, Social Security Number, ... credit card number," (24) or any other personal identification information in order to obtain "loans in the victim's name, steal money from the victim's bank accounts, illegally secure professional licenses, drivers licenses, and birth certificates," (25) or other unauthorized use of the victim's personal information for financial or other activity. (26)

   This section will discuss how identity thieves obtain the necessary information in order to assume a victim's identity and the various ways in which identity thieves exploit the victim's personal information for their own personal benefit.

   1. METHODS BY WHICH IDENTITY THIEVES OBTAIN VICTIMS' PERSONAL INFORMATION

      Identity thieves use various techniques to obtain personal information ranging from mundane activities to high-tech inventions. The classic method involves searching the victim's garbage to find old credit card bills, bank statements, utility bills, phone bills, or any other document that has a name, address, or account information. (27) Identity thieves may rummage through a victim's mail (28) or call a potential victim's home, acting as a banker who is calling to "verify" credit card information. (29) Other techniques include looking over someone's shoulder in the checkout line at a supermarket or other store in order to learn the person's name and Social Security Number, which is often sufficient to obtain personal identification under the victim's name. (30)

      Some identity thieves use more advanced practices to obtain the victim's personal information. Cashiers may use a "swiper," (31) a small device that allows the one swiping a credit card to obtain and store all of the cardholder's personal information. (32) The personal information can then be downloaded or scanned directly into a false credit card. (33)

      The advancement of computer technology and the development of the Internet have provided identity thieves with more options to obtain the necessary information to carry out their crime. (34) Identity thieves may be able to obtain a victim's personal information by hacking into a database, personal computer, or a company's computer system. (35) The Interact, therefore, allows a potential identity thief to obtain a victim's personal information from her home, office, public library, hotel room, or any other location with Interact accessibility. Such easy access obviates the need for an identity thief to rummage through a victim's garbage or mail, follow a victim to a supermarket, or any other conventional method of obtaining a victim's personal information. (36) Moreover, the Internet allows identity thieves to seek out victims from virtually anywhere in the world. (37) Finally, the identity thief may carry out her crime via the Interact, regardless of how the victim's personal information is obtained. (38)

      While the Internet has had a direct impact on the recent proliferation of identity theft, (39) the crime would still be a problem without the Internet. (40) This is because another frequently used method of obtaining victims' personal information is through an "inside job." (41) This occurs when information is obtained by a fellow employee at a place of employment and then is used or given to someone else to carry out an identity theft crime. (42) "Inside jobs" are troubling for two reasons. First, many suggested techniques to avoid becoming a victim of identity theft, which include shredding old bills, bank statements, and pre-approved credit card applications, as well as not carrying around one's Social Security Number in a purse or wallet, will likely be ineffective to protect against an "inside job." (43) Moreover, an "inside job" may provide the identity thief with the identification information of thousands of potential victims, thus creating breeding grounds for mass identity theft to occur. (44)

   2. DIFFERENT FORMS OF IDENTITY THEFT

      Once an identity thief obtains the personal information of a potential victim, the thief can use that information in various ways. While this Comment will focus on criminal record identity theft, most reported cases of identity theft involve financial motivation. (45) Because criminal record identity theft is only one form of the broader crime of identity theft, a brief look at other types of identity theft is instructive to attain a better understanding of criminal record identity theft.

      1. Financial Identity Theft

         Financial identity theft occurs when the identity thief uses a victim's personal information to withdraw money from a victim's bank account, open a new bank account, (46) credit card, (47) or other line of credit (48) in the victim's name, or files a bankruptcy petition using the victim's name. (49) With respect to credit lines, the thief generally defaults on the loans and the delinquent account(s) is reported on the victim's credit report. (50) This leaves the victim with both a damaged credit history and the burden of clearing her credit history, (51) an emotionally draining process requiring a great deal of the victim's time, energy, and resources. (52)

         In addition to the burden of clearing her name, a victim may be unaware that she has become a victim of identity theft until weeks, months, or even years after the damage has already been done. (53) For example, a victim may learn that she is being victimized by simple occurrences such as receiving credit card bills from credit cards for which she never applied, noticing items on a credit report or credit card bill for which she is not responsible, or observing that certain bills have missed a billing cycle. (54)

         In other cases the victim may become aware that she has been victimized in a more unexpected way. For instance, a victim's application for a new credit card, mortgage, automobile loan, or other line of credit may be...