Courts: Using Another's SSN Not A Crime?

by Bob Sullivan

Is using a forged Social Security Number -- but your own name -- to obtain employment or buy a car an identity theft crime? Lately, U.S. courts are saying it's not.

The most recent judicial body to take on the issue, the Colorado Supreme Court, ruled last month that a man who used his real name but someone else's Social Security number to obtain a car loan was not guilty of "criminal impersonation," overturning convictions by lower courts.

That follows a ruling last year by the U.S. Supreme Court that a Mexican man who gave a false SSN to get a job at an Illinois steel plant could not be convicted under federal identity theft laws because he did not knowingly use another person's identifying number. The ruling overturned an opinion by a federal appeals court in St. Louis -- and contradicted earlier findings by circuit courts in the Southeast, upper Midwest and the Gulf states.

It hasn’t been a shutout for identity theft prosecutors, however. In July, an Iowa state appeals court came to the opposite conclusion, affirming a lower court decision that a man who used a California woman's SSN to obtain employment was guilty of breaking that state's identity theft law.

Identity theft can take many forms, but one of the most vexing is so-called "SSN-only" ID theft. In it, an imposter uses a victim's SSN --- sometimes purchased from a broker, sometimes nine digits pulled out of thin air -- to obtain credit or to provide necessary documentation to obtain work. In many cases, SSN "borrowing" is successful and the imposter goes undetected for years.

At the heart of all these cases is a simple question: Does the mere use of an anonymous victim's SSN break identity theft laws?

Mari Frank, a California-based lawyer and identity theft victim advocate, said courts are failing to recognize the real harm caused by imposters, even if imposters are unaware of that harm.

"You can't say there's no victim,” she said. “That Colorado ruling really aggravated me," she said. Courts are mis-applying impersonation laws, and that could really hurt victims. "(The judges) just don't get it."

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