The National Council on Identity Policy (NCIDP) - Firewire News Case Study: Auto Dealer Identity Theft Scam part I

The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP...

(Firewire News) - The hottest question at the NCIDP throughout 2008, most popularly asked by many people in nearly word-for-word form, goes something like this:

I live in California [or any of many other states]. I recently reached an internet sales price for the purchase of a car. I went to the dealership and began paperwork. I was told that I was required to fill out a credit application in order to purchase the car. They told me that the Patriot Act required me to fill out a credit application and give them my social security number. They could not show me - or a friend who accompanied me to the dealership - where in the Patriot Act this was required. They did obtain my social security number.

To whom do I report them?

Thank you.

The answer given by the NCIDP follows:

Thank you for contacting us here at the National Council on Identity Policy. We are sorry to hear of the perpetration of violent assault (Keeble v. Hickeringill (QB, 1707)) that you endured (The Heart of Violence & the Law). We understand keenly the great depth of violation that such perpetrations are, as does the body of U.S. law that applies, and upon which we focus. As is recognized by regulatory guidance in California, echoing the courts, a person's own identity is the most valuable and intimate possession that can possibly be owned (Lockyer, 2000). Thus, at law, the world's next most valuable asset, whether the Taj Mahal, Microsoft Corporation, the Smithsonian Institute, or something else more valuable still; all hold less pecuniary value than what was stolen from you by that California car dealer. [Clarification: Lockyer invoked U.S. Supreme Court findings on the fact that an individual's identity information is private property worth more than any other private property that may ever be owned can possibly hold, paraphrasing the court in those decisions in his administrative guidance brief; Lockyer himself restated the property finding of the court without himself mentioning its pecuniary valuation held by the court.]

The answer to your question, "To whom do I report them?", is not so simple and straightforward as it ought to be. As we are not your legal counsel, we can tell you what the law says, how it characterizes what was done to you, but we cannot give you legal advice or advise you on a course of action. That is, we can tell you what the law says about the actions of the car dealer, and who the proper agencies are relating to those legal descriptions, but we cannot go further.

Tragically, the crimes that you endured are epidemic, and car dealers have become notorious for exactly the identity theft scam that you described, especially in California. So much so that our response to you is largely prewritten in response to nearly identical queries prior to yours, in publication to our associates at Firewire News, and in preparation for publication (generically) to the Case Studies section of our website [and so here it is].

Indeed, you were correct in your assertion to the car dealer that the Patriot Act (P.L. 107-56) in no way imposes mandatory disclosure of an SSN upon you for the purchase of a car, or for any other reason whatsoever. They lied about that (dishonest service, 18 U.S.C. § 1346) to you and grand kudos to you for confronting them on that.

Ironically, the Patriot Act (P.L. 107-56) actually reiterates the Privacy Act (P.L. 107-56 § 361(a)(2)), which prohibits an agency from denying any service or benefit to an individual who refuses to provide a SSN, unless that disclosure is enumerated in Federal law applicable to the SSN holder as disclosure made mandatory upon that holder for the receipt of that specific service or benefit. This prohibition extends to any party acting as an extension of, or on behalf of, any government agency.

However, the dealer's claim of that authority of law, and their adoption of the mantle of State Actor acting under color of authority, conforms to actions described by 18 U.S.C. § 242 as acts depriving you of your civil rights under color of authority, a federal felony that should be investigated by the Federal Bureau of Investigation (FBI) and prosecuted by the U.S. Attorneys' Office. If two or more individuals or entities were involved, any one or more of whom was a State Actor, 18 U.S.C. § 241 describes it as a conspired act depriving you of your civil rights, another more serious Federal felony. Moreover, their acquisition of your identity information (SSN) under that false pretense and in the commission of those crimes conforms to the description for the Federal felony of Identity Theft found at 18 U.S.C. § 1028. Again, all of these are within the investigative scope of the FBI, and within the prosecutorial scope of the U.S. Attorney.

As the dealership claimed authority under the Patriot Act (P.L. 107-56) for their actions, and that act was enacted after 1990, the file that they created with your information and SSN is mandatorily sealed as confidential, in toto, by 42 U.S.C. § 405. Under 42 U.S.C. § 405, no disclosure of any part of that record is permitted for any purpose not mandated by Federal law to any party. That means, at law, that NO information exchange involving ANY PART of that file information may be exchanged with, for example, credit bureaus, state agencies, or the like, unless P.L. 107-56 or a federal statute mandates that disclosure. To make such prohibited disclosure is a criminal violation of 26 U.S.C. § 7213, and constitutes an unauthorized use of identity information in violation of the aforementioned law, which is identity theft (18 U.S.C. § 1028), and probably in an aggravated fashion (18 U.S.C. § 1028A) such as electronically [by wire] (18 U.S.C. § 1343) and/or across state lines (18 U.S.C. § 2314). The element of wire fraud should incite the Postal Inspectors to investigate these crimes, and the rest normally would also interest the FBI. The U.S. Attorneys are normally expected to prosecute these kinds of violent crimes (The Heart of Violence & the Law).

Transmission of the stolen identity information across state lines, including the stolen SSN, is described by 18 U.S.C. § 2314 as transportation of stolen goods across state lines, another Federal felony. In all likelihood, that criminal transmission occurred electronically, thus being described by 18 U.S.C. § 1343 as wire fraud (normally investigated by Postal Inspectors). Regardless, however, that you were lured in for these perpetrations by their Internet interface is dishonest service (18 U.S.C. § 1346) creating wire fraud (18 U.S.C. § 1343). The legal standard for determining any action that can be prosecuted as wire fraud (or mail fraud) is described by 18 U.S.C. § 1346, which enumerates that the perpetrator merely needs to engage in "dishonest service" (18 U.S.C. § 1346) involving the use of wire (or mail) for it to constitute wire fraud (18 U.S.C. § 1343) (or mail fraud (18 U.S.C. § 1341)). Lying to you and falsely claiming that the Patriot Act (P.L. 107-56) mandated disclosure is certainly "dishonest service" (18 U.S.C. § 1346).

Given that more than one person was likely involved in this theft and fraud scam, in an organizational and repeated manner, perhaps even documented in a written form under the guise of a "policy", the activity appears to be described by Federal RICO statutes (18 U.S.C. §§ 1961-1968) as still more Federal crimes (Cianci v. U.S. (S Ct, 2004)). Again, this ought to interest the FBI and the U.S. Attorney.

Given the high valuation of the theft, the car dealership is also liable for taxation on that stolen property and may be prosecutable for income tax evasion. If, for arguments sake, we were to estimate the pecuniary value of the stolen identity at $10 trillion dollars, which is probably very low, how much tax does the car dealer owe on the value of that stolen identity? Multiply that by how many victims of this crime the dealer has perpetrated upon, and now how much is that? This issue should be of keen interest to the U.S. Treasury Department.

Additional Federal criminal statutes may also apply.

As an organization with a nationwide focus, our expertise is in federal law, and nationally applicable case law, on this subject. However, in most states, including California, state laws also generally describe the activities of the car dealer as criminal activities and state felony and/or misdemeanor violations. Theft of your identity information, a possession holding more pecuniary and other value than any other worldly possession may ever hold, is generally described as a felony theft or grand theft in most states, as well as the added specific offense of felony or misdemeanor identity theft in some states. Such laws would normally be investigated by state and local law enforcement agencies, and prosecuted by state or local prosecutors, or the state Attorney General.

Although these activities are described at law as multiple felony crimes worth well over 100 years Federal imprisonment for the offending individuals at the dealership, other agencies and bureaus may also offer some small recourse. Better Business Bureaus nationwide accept and record complaints about businesses, and many business activities are specifically answerable to state regulatory agencies in certain states. Such agencies may even have direct civil enforcement authorities in some states. California tries to regulate everything, so dealers likely have an agency to answer to in that state with whom complaints can be filed.

Some legal remedies may also be available through civil actions. RICO, for example, while a Federal criminal statute, further enumerates an option for aggrieved parties to pursue financial remedies through civil suits, and offers triple damage awards. In the case of the theft of the most valuable possible possession in the world, tripling that begins to offer worthwhile, if still inadequate, remedy. Most other civil suit remedies are found in state laws or common law, and are generally pursued in state courts.

Also, a party aggrieved of such Federal crimes generally has the right to present a case directly to a Federal criminal grand jury in an effort to obtain criminal indictments of the perpetrators. A similar right under state law, for a state criminal grand jury, may or may not exist. Actually managing to exercise that Federal right may prove extremely difficult.

Finally, don't forget that you can report the perpetrating employees of the dealership directly to the ownership or chief executive officer of that dealership. The junior employees of the dealership could just possibly be perpetrating these violent felonies (The Heart of Violence & the Law) unbeknownst to the ownership or senior management, although most dealerships are small enough that this is unlikely. Still, it is important to make such complaints, formally and in writing, so as to deprive that ownership/management any later opportunity to deny such knowledge. As a general rule, we like to enumerate the pertinent federal criminal statutes in such written complaints.

In a practical sense, unless the investigating and prosecuting agencies start receiving many complaints about these scams, they are likely to remain under-prosecuted, or completely un-prosecuted, despite the inherent and egregious violence in them (The Heart of Violence & the Law). To date, law enforcement agencies have been grossly neglectful of these crimes, and prosecutors have been woefully incompetent and apathetic toward proper prosecutions of such crimes. As a DIRECT consequence, we have a nationwide epidemic of identity theft that remains grossly unchecked.

Ironically, these scams, so common at dealerships and other places, are anathema to the declared intent of the Patriot Act (P.L. 107-56): enacted ostensibly to stifle terrorism, it is itself an act of terrorism; and any information that may result from such criminal acts, committed by any State Actor, are generally described by the courts as "Fruit of the Poison Tree", and therefore inadmissable in any criminal proceeding. Thus, were it that an individual encountering your felonious dealer acting as a State Actor, were indeed an International terrorist, and the dealer's extorted theft of that individual's SSN was reported to some agency which then led to more information that uncovered that individual's terrorist activities and sufficient evidence for arrest, all of that evidence would generally be inadmissable "Poisoned Fruit" that arose, and the terrorist would get away free and unprosecutable.

As tragic as such a "Poisoned Fruit" event might be, the greatest tragedy is the direct violent assault (The Heart of Violence & the Law) and perpetration of terrorism of those such as you've encountered, who perpetrations occur daily and by the millions.

We at the National Council on Identity Policy applaud your conscious awareness and justifiable concerns about these matters. Indeed, the circumstances are grave and atrocious, and we are grateful to every individual who takes note and takes a stand against these acts of violence and violation and theft. We truly see little difference between the car dealer who refuses to hear "NO!" in regard to such an intimate possession as identity information, and the rapist who refuses to hear "NO!" in regard to a rape victim's body - THE PATHOPSYCHOLOGY OF BOTH PERPETRATORS IS IDENTICAL. Such sentiment is not written lightly - everyone here at the NCIDP involved in formulating this response to you, from our legal analysis and legal anthropology departments, to our psychosocial department, has individually and personally experienced both rape and identity crimes.

We offer our sincere empathy for your victimization at the hands of the perpetrator that you have described. We hope that you find some measure of justice in this. We are keenly interested in any actions or reports that you may choose to pursue or make, and ardently request that you keep us updated on this case and your activities or progress in it. We wish you all the best of good luck in whatever course you may choose to pursue.

Very Truly,

The Staff at The National Council on Identity Policy

NCIDPolicy.org