It's Not Always about the Money: Why the State Identity Theft Laws Fail to Adequately Address Criminal Record Identity Theft

Article excerpt

I. 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)

II. 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. …