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

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 auto dealer scam subject continues to be a hot topic among e-mails sent to the NCIDP. Specifically, numerous follow up questions have arrived in the NCIDP inbox, many asking about Social Security Number solicitations that the dealer personnel rationalize in a manner other than by the previously discussed false claim of mandate by the Patriot Act. A representative form of these questions sounds like this:

I live in Florida [or any of many other reported states]. I recently reached an agreed sales price for the purchase of a car with a car dealer. I began paperwork and was told by the dealership that I was required to supply a Social Security Number by the Patriot Act. Thanks to your website at NCIDPolicy.org, I successfully challenged the dealer to show where in the Patriot Act I was mandated to supply a Social Security Number to any car dealer. They backed off, but then claimed that I had to provide a Social Security Number to pay with a check.

Is this legal?

Thank you.

The answer given by the NCIDP follows:

Thank you for writing, and thank you for sharing your experience. We are sorry to hear of the victimization that you have experienced, and we applaud your tenacity and awareness in this - you have refused to let them trample you down and we are encouraged by your courage. You have experienced a violent assault (The Heart of Violence & the Law), as defined at law, and that is an inexcusable perpetration by the personnel at the dealership that you describe.

The issues surrounding your question, "Is that legal?", are complex, and the shortest possible answer is a highly qualified "maybe - but not likely."

Our standard disclaimer: 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, but we cannot go further.

The mere solicitation of an SSN is sufficient to invoke 42 U.S.C. § 405 regarding the entirety of related records, should other conditions be met, such as applicability to those records of any law enacted after October 1, 1990, including the Patriot Act (P.L. 107-56). Thus, despite the backpeddling of the dealership after your well informed challenge, they and their records are not relieved of the precedent invocation of 42 U.S.C. § 405 and its important constraints.

Making the false claim of a mandate of law, such as citing the Patriot Act, is clearly criminal, as we have explained previously (Auto Dealer Scam part I). Note too that, even though a solicitation under a false pretense such as the Patriot Act may not trick a victim into actually surrendering that identity information, that act itself constitutes several crimes, regardless of the success of the scam. The dealership personnel are already felony assailants.

Moreover, in the case of the excuse that it is required for acceptance of a check, this is highly improbable. The invocation of 42 U.S.C. § 405 would prohibit the dealership from prescreening your check through a check bounce history monitoring service, and the dealership would then be strictly limited to depositing your check and waiting to see if it cleared your bank.

No SSN disclosure requirement is mandated upon individuals by any federal statute applicable to individuals for the writing of a check to a car dealership, and as we discuss elsewhere, P.L. 93-579 (Privacy Act) and 42 U.S.C. § 405 clearly limits the power to make such SSN disclosure mandates to federal law. State and local laws are prohibited by federal law from imposing "disclosure is mandatory" upon any individuals.

IF, however, the dealership personnel are plainly honest in soliciting an SSN from the beginning, then the legal landscape of the situation changes. WHILE merely soliciting ANY governmental validation of an individual's identity legally renders the solicitors to be State Actors, invoking the protections of certain statutes generally applicable only to state actors (e.g. 18 U.S.C. §§ 241 & 242), the Privacy Act is written in a manner that may not necessarily extend it automatically to ALL such State Actors. In the case of an SSN, 42 U.S.C. § 405 also does not extend automatically to ALL State Actors, but does constrain ANYONE "who has or had access to social security account numbers or related records pursuant to any provision of law enacted on or after October 1, 1990", that constrains ANY RECORD, or portion thereof, "that indicates, directly or indirectly, the identity of any individual with respect to whom a social security account number OR A REQUEST FOR a social security account number" occurred. (42 U.S.C. § 405(c)(2)(C)(viii) [Emphasis added]). MOST RECORDS these days ARE maintained pursuant to a law enacted after October 1, 1990, including the Patriot Act, and are therefore confidential and beyond disclosure in any part not MANDATED by enumeration in federal law.

IF the personnel at a car dealership are plainly honest enough to state, AND it is an accurate statement, that they are soliciting an SSN: (1) without any law or regulation requiring them to do so; (2) without themselves facing any penalty or recrimination for your refusal to authorize access to it; (3) without any obligation AT LAW upon you to surrender such identity information; (4) but that they, as a matter of contract law, as an individual and independent business entity independently refuse to accept a check on the basis of such a refusal to provide an SSN; IN SUCH A CASE, it MAY be legal under Federal law, but still could be illegal under state law. [In general, state laws fall beyond our scope. The fundamentals of identity information law are strongly rooted in Federal law and Constitutional case law, and state laws regarding SSN can ONLY impose solicitation of such information upon entities and request VOLUNTARY disclosure of individuals.]

Of course, any dealer, or anyone else, making such assertions are then left with the nagging question: why ask for an SSN then?

NOTE, however, that if a STATE or LOCAL law mandates that dealerships solicit identity information, then the Privacy Act DOES apply (even if the dealership, now aware of their liabilities and constraints as State Actors, attempts to lie and falsely claim that no government law or regulation whatsoever applies), and they are prohibited from denying you the service or benefit that you seek (car purchase) based upon your refusal to provide an SSN. STATE or LOCAL law cannot impose MANDATORY DISCLOSURE of an SSN upon you personally, so in any such case of state law mandating solicitation, it must be accompanied by a Privacy Act notice declaring that DISCLOSURE IS VOLUNTARY. Simply failing to provide this Privacy Act notice properly at the time of solicitation violates 18 U.S.C. §§ 241, 242, 1028 and voids any potential requirement to disclose an SSN.

In short, it is an "EITHER/OR" situation: Either there is absolutely no governmental instruction bearing upon the dealership to collect an SSN OR OTHERWISE REGULATING THE INFORMATION THAT THEY OBTAIN OR MAINTAIN regarding purchasers, and the dealership is electing willingly and freely to adopt the liabilities of State Actors; OR they are acting pursuant to some governmental directive or instruction, including at law, and the Privacy Act is applicable and 42 U.S.C. § 405 is almost certainly invoked. In the former case, solicited of their own free will, the action MAY be legal and the record may not be sealed confidential by 42 U.S.C. § 405 - and so the dealership may be able to run credit checks, bounced check history checks, and so on. IN THE LATTER CASE, the entire record is sealed confidential and the dealership cannot communicate any part of it's information regarding you to any other party, including credit bureaus and state and federal agencies, without committing the many felonies described at 18 U.S.C. §§ 241, 242, 1028 and 26 U.S.C. § 7213, among others.

It may be pertinent to research state and local laws on the matter, whether applicable specifically to dealerships or businesses or tax issues in general, as these may enhance privacy protections for your records, even if any applicable state law was merely enacted after October 1, 1990, ensuring that 42 U.S.C. § 405 is fully invoked. Some larger dealerships, for example, also function as financial institutions, therefore making them subject to regulation by the Patriot Act, thereby in turn inherently invoking 42 U.S.C. § 405.

In any case of it coming down to contractual law, therein lies one critical importance of establishing your own Identity Information User License Agreement (IIULA), the contractual governance for the identity information that you provide in any circumstance which clearly establishes your legal and contractual rights in your own identity information and your recourse for any violations of those rights. Our standardized model for such is available online (IIULA - You Have the Power), and that standardized model contract demands that licensees assert that they are ONLY adopting the mantle of State Actors pursuant to a legal requirement to do so. That is, we believe that we do not want to do business with anyone feeling so entitled and arrogant as to act as State Actors of their own independent choosing without mandate of law - we find such individuals to almost universally be violent perpetrators of one flavor or another AND we recognize that they may be able to evade the critical protections of the Privacy Act and 42 U.S.C. § 405.

To avoid the contractual demand of an SSN for a check, in addition to asserting a IIULA, it may be possible to ask them if they might: (1) accept a certified check or bank check; (2) accept cash; (3) accept a credit card; or (4) accept the check but wait for it to clear before you are allowed to drive off the lot with the car. If they still demand an SSN for these more secure forms of transaction, then it is obvious that they are simply bent upon their identity theft scheme and it is really all about obtaining that information, and perpetrating the power trip of another violent assault, rather than completing the transaction. Violent crooks then, as they have actually already revealed themselves to be.

The NCIDP generally recommends cash transactions as the most inherently private form, and the only form of transaction safe for most of the survivors of extreme violence in NCIDP case files. Cases are common for homicidal stalkers to illegally access a victim's credit reports or other financial records, thereby locating the last prospective landlords or employers to request a report or other transactions, leading the perpetrators directly to their victims and homicidal assault. NCIDP case files are rife with such cases.

Again, thank you sincerely for writing to us here at the NCIDP. We appreciate your concern for your own liberties and freedoms, and the privacies that we all must exercise to preserve our democratic principles of governance. You have made no comment of life-safety concerns surrounding this, and we make no assumptions in that regard, but please do know that even if this is not a matter of life-or-death privacy for you, it is for a great many, and every exercise of that privacy and safety precaution by anyone helps to save those lives in the future. Indeed, the efforts of the dealership that you describe to aid and abet the enemies of freedom that our former President declared us to be at war with are a vicious effort to dismantle the very foundations of our nation, and your stand against those plots of terrorism are nothing short of heroic in our view. We wish you well in this.

Very Truly,

The Staff at The National Council on Identity Policy

NCIDPolicy.org