Criminal Law: Identity Theft

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Introduction

As the information technology is making great strides and is expeditiously turning the world into an inter-networked village, it is also opening avenues for invasion of privacy. On of the various forms of pilferage of personal information is identity theft. This is perhaps one of the most heinous crimes arising due to the lapse of security and privacy particularly in the cyberspace. However, the crime of identity theft has been devastating the personal and the professional lives of many since the past several decades. This evil is increasingly rising with the passage of time especially with the electronic mode of communication.

California was the sole state to take the initiative of tackling the issue of identity theft. The state incorporated laws on the crime in its legislation. The law required the different organization keeping personal information of customers to be careful regarding when and how to use the data without any unnecessary disclosure. The other states followed the footsteps of California and implemented similar litigation on identity theft. (Schneier, 2006).

Critics argue that the crime of identity theft is fundamentally a serious offence of impersonation. The thief or the criminal obtains the personal information of the victim and impersonates himself to be him. The actual identity of the victim, if viewed in the literal sense, is not “stolen” rather it is all the relevant and confidential information of the unfortunate individual or individuals which is being misused (Schneier, 2006).

Elements of Identity Theft Under Historical Common Law

As the crime of identity theft is being committed since a long time, there were laws already in place to combat and reduce the crime. These legislative policies also determined the treatment to be meted out to the offenders as well as the victims. The laws traditionally dealt with the issues of impersonation. Later, more emphasis was placed on transfer of personal information among different state-owned and private organizations.

According to a survey conducted by Privacy and Human Rights (n.d), “Multi-media fuse many forms of transmission and expression of data and images so that information gathered in a certain form can be easily translated into other forms”. This is a source of pilferage of information. Data is more susceptible to get into wrong hands.

It is seen throughout history that California is a “trend-setter” in promulgating laws on the crime. The state has been a “first-adopter of new types of laws” which are promulgated later by other states of United States (Hirsch, 2007).

Under common law, the crime of identity theft was defined more as an offence of impersonation or fake identity. The clauses in the rulings were general compared to the clauses in the current state statute. The incidence of identity theft was not as common in the past although many individuals suffered a lot because of it and there are a number of popular cases based on identity theft in the state of California.

Elements of the Current State Statue for Identity Theft

There has been an increase in the number of cases of identity theft over the years. Therefore, more specific laws and rulings have been devised and promulgated. California has, as usual, been a pioneer in taking steps forward towards curbing the rising incidence of identity theft and has recently passed some newer and more specific laws on the crime.

The very infamous case of ChoicePoint in 2005 led to the promulgation of stringent laws on identity theft. The Federal Trade Commission fined ChoicePoint with $15 million “for a high profile security breach that occurred in 2005”. (Milewski, 2006). It is learnt from the case of ChoicePoint that “approach privacy and security compliance” is compulsory particularly for organizations which store personal information of customers or clients in large databases. The identity thieves have found more “sophisticated” means of spoofing into confidential personal data of customers and are very likely to cause them “damages” in the form of such as “class action litigation”, “stock price”, “reputation” and credibility (Hirsch, 2007).

Three main laws have been passed to protect the residents of California against identity theft. Two laws more specifically protect the personal information of people from being misused. The first law requires the organizations providing personal information of individuals to third parties must inform their concerned clients when doing so. The second law asserts those who feel vulnerable to identity theft have a right to order” freeze” of their personal information. When a “freeze” is implemented, the chances of identity theft are minimized to almost zero. (Sathish, 2006).

Change in Elements of Identity Theft from Historical Common to Current State Statute

Changes in laws on identity theft in California have been absolutely imperative. The case of ChoicePoint opened the eyes of policy makers and drawn their attention towards promulgation of stricter litigation. Providing protection to the public is a responsibility of, both, the law enforcing elements of state as well as the governmental and privately-owned organizations (Gerard, Hillison & Pacini, 2004).

The two new rulings have unambiguous clauses which are specific to the leakage of confidential and personal information of customers to third parties. Some organizations have been selling customer information to third parties.

Possible Reasons for Changes

The growing incidence of and the large-scale loss caused by identity theft has been a major driver of the change in the legislation. It is a positive step taken towards curbing identity theft and relieving the society of this evil crime.

The unobvious reasons could be related to the credibility of the state government and the organizations having personal information of customers. The state authorities might have felt that the society would start distrusting them for the kind of protection they provide and this would earn a bad name to the state in the eyes of the entire nation. The organizations would lose their customers and their loyalty. At the same time, their reputation and the financial worthiness of their assets and liabilities would be at stake.

Recommendations for New Changes in the Statute Based on Society’s Needs

As the business environment becomes increasingly competitive and the needs of the society change, there would come a time in the near future when the recently passed would have to be altered or new ones would have to be announced. With the growing virtual industry and several business transactions and dealings being carried out electronically, there is a rising chance of identity theft occurring. As the technology becomes more sophisticated and the world progresses, the evils in the society also increase. The threat of identity theft is among them. In order to prevent heinous crimes of identity theft, newer laws would have to be promulgated.

The laws recently announced can be made more specific by elaborating on under what conditions or circumstances can organizations pass on the personal information of customers to third parties. The customers or the society also has a responsibility to fulfill. The people should be careful when providing personal information and avoid public online platforms where such information can be viewed by globally without restriction. The customers should only provide information which is absolutely necessary.

Conclusion

The crime of identity theft is rising. It is causing great concern for the society and authorities. New, stringent laws have been passed to curb this evil. Organizations having customer data are accountable and responsible for the information they hold. They cannot pass on or sell information without the consent of the customers. The customers are custodians of their information and required in their best interest to provide only essential information.

References

Hirsch, Reece (2007). Overview of California Overview of California

Privacy Laws Privacy Laws.

Gerard, Gregory J., Hillison, William & Pacini, Carl (2004). Identity Theft: the US Legal Environment and Organisations’ Related Responsibilities. Journal of Financial Crime, 12(1), 33-43.

Milewski Jr., Anthony D. (2006). Compliance with California Privacy Laws: Federal Law Also Provides Guidance to Businesses Nationwide. Web.

Sathish, Phuspa. (2006). Congress Trying to Dilute Laws Against ID Theft. Web.

Schneier, Bruce. (2006). Schneier on Security: Identity-Theft Disclosure Laws. Web.

(n.d.). Privacy and Human Rights: An International Survey of Privacy Laws and Practice. Web.

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