Thursday, November 11, 2010

Using stolen Social Security number isn't identity theft

The Colorado Supreme Court has overturned the identity theft conviction of Felix Montes-Rodriguez. This case is important because according to the courts decision, the fact that he used a stolen Social Security number did not make his action identity theft:

Montes-Rodriguez admitted to using the false social security number. However, he contested the criminal impersonation charge. He argued that he did not assume a false identity or capacity under the statute because he applied for the loan using his proper name, birth date, address, and other identifying information.

and further down:

We reverse. Consistent with previous Colorado case law, we hold that one assumes a false or fictitious capacity in violation of the statute when he or she assumes a false legal qualification, power, fitness, or role. We also reaffirm our earlier holding that one assumes a false identity by holding one’s self out to a third party as being another person.

When I first saw this decision I thought, "No Way! How could they say that?!"

But after rereading, I realized that the court was right. This particular criminal didn't steal anyones identity, he just committed fraud. He never claimed to be someone else. He used all of his own identifying information except for his Social Security number. By the definition of identity theft in Colorado law, he didn't steal anyone's identity.

That doesn't make his crime less serious. It should make it easier to get any bad marks on credit report removed, since it's fairly easy to prove they were the result of fraud by a third party. It should. In practice it may not be so easy. If a car dealer or bank was willing to accept a Social Security number that was not connected in any way to any of the other identifying information given, and approve a loan based in part upon that number, then the financial reputation and identity of the rightful holder of the number has been stolen. It doesn't matter that the name, address, phone number and everything else on the application belongs to the actual applicant. The credit score(s) attached to the Social Security number is a, possibly the, major factor in the approval of the loan.

Forty years ago the idea that a Social Security number isn't tied to identity might have worked. Today it is so entwined with our identities that it can be difficult to do anything without one. The law needs to catch up to that reality and recognize that sometimes the financial history attached to a Social Security number can be more important than the name - as evidenced by this case.