About Adam K Levin | Contact | Videos

Rocky Mountain Low: Colorado Court OKs Identity TheftBlogIdentity Theft


Share
"Burglar Stealing ID", via Stockphoto4U, ThinkStock.

“Burglar Stealing ID”, via Stockphoto4U, ThinkStock.

Study after study shows that identity theft is one of the most devastating crimes an American can experience.

That’s particularly true of Social Security theft, a growing threat to U.S. consumers in this, the digital age, where personal information is much as a commodity as ball bearings or Buicks.

According to Javelin Strategy & Research’s 2010 Identity Fraud Survey Report, identity breaches are a huge problem in the U.S, with 32 percent of all identity theft involving Social Security numbers.

That’s a dangerous number. After all, you can share a name, a physical address – even a birthday, but your Social Security number is unique to you. Lose it, and the path is wide open to a host of 21st century consumer nightmares, such as destroyed credit, an avalanche of credit card and medical bills, harassment by debt collectors, health jeopardy, tax issues, no fly lists, loss of security clearance and even arrest for crimes you didn’t commit.

So with all the data pointing to Social Security theft as a major security threat, why doesn’t the state of Colorado agree?

It’s a fair question. The state’s highest court recently threw out a conviction against a man who used a stolen Social Security number to help get a car loan. The man, Felix Montes-Rodriguez, was originally convicted of criminal impersonation for using the stolen number at a Boulder, Colorado car dealership. Court records revealed that the dealership required a Social Security number as part of it’s due diligence on all credit checks.

Court records also show that Montes-Rodriguez provided a Social Security number that clearly was not his own. According to the court docket, Montes-Rodriguez “admitted to using the false Social Security number … 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.”

The majority’s point was this.

As Montes-Rodriguez had some primary identifying data (his name and address, foremost), then he really wasn’t trying to assume a false identity. For legal support, the majority cited Colorado law on criminal impersonation, which occurs “when one assumes a false identity or a false capacity with the intent to unlawfully gain a benefit.”

Here’s how Justice Michael Bender framed the case, writing for the majority’s opinion.

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. See People v. Alvarado,132 P.3d 1205, 1207 (Colo. 2006). Applying this holding to the present case, we conclude that Montes­Rodriguez neither assumed a false capacity nor a false identity in violation of the statute.

The prosecution failed to prove the false-capacity element of the crime because it presented no evidence that the law requires loan applicants to have social security numbers. In other words, the prosecution failed to present evidence that a social security number gives one the legal qualification, fitness, or power to receive a loan. The prosecution also failed to prove the element of false identity. Montes­Rodriguez’s false social security number was one of many pieces of identifying information submitted on his loan application.

On the whole, by providing his proper name, birth date, address, and employment information, the evidence establishes that Montes-Rodriguez applied for the loan as himself, not as another person.

Bender is saying prosecutors didn’t make the case that a Social Security number is a legal necessity in applying for a loan. So in Bender’s book, the clear fact that Montes-Rodriguez obtained the Social Security number illegally is immaterial to the case.

But Justice Nathan Coats, writing the minority’s dissenting opinion, makes to me, the sensible point that a Social Security number is the single most unique, most personal, and ultimately most important piece of personal information required to obtain credit.

“I not only believe the majority misconstrues the Criminal Impersonation statute and reaches the wrong result in this case,” Coats wrote, “but by slicing, dicing, parsing, distinguishing, and generally over-analyzing (over the course of some thirty paragraphs) one short and relatively self-explanatory phrase, the majority manages to exclude from the statutory proscription conduct lying at its very heart.

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, I respectfully dissent.”

Colorado already has a relatively strict law on the books against using a Social Security number to gain credit – the state’s Identity Theft Act. But in the Montes-Rodriguez case, it apparently didn’t matter.

So while the defendant walks away a free man, after knowingly using a Social Security number that was not his own to obtain credit, Colorado consumers, ironically enough, wind up feeling less free.

While I understand the narrowness of the majority’s viewpoint, you can’t make the case that a man using a Social Security number that belonged to someone else wasn’t engaging in what Colorado law cites as “criminal impersonation”. More so, I categorically reject the notion that Social Security numbers should take a back seat to any piece of personal financial information when seeking to establish credit, as the court suggests. On the contrary, the Social Security number is the most critical piece of data when obtaining a loan, far more important than a name or address.

Put it this way: Just as you can’t discuss great gorilla movies without referencing King Kong, you can’t discuss identity theft without acknowledging the singular importance of Social Security numbers.

Even though, in the case of the State of Colorado vs. Felix Montes-Rodriguez, that’s exactly what the Colorado Supreme Court tried to do.

Besides the original conviction, a lower court of appeals affirmed that result.

The Colorado Supreme Court, by a 4-3 vote, didn’t see it that way. Admittedly, the decision to void the original conviction was a nuanced one (the minority opinion cited the majority’s proclivity to “slice and dice” the meaning of identity theft), but as far as the bigger picture is concerned, the Court got it wrong.

Originally posted at Credit.com.