Abstract
The introduction of identity theft into contemporary society caused considerable conceptual confusion. The mere terminology became the source of vivid discussions, especially since individuals with a legal background questioned the usage of the word `theft’ in association with identity. The main question from the legal front became: can someone steal an identity? Traditional definitions of theft in criminal law conflicted with the meaning of the term as used in the concept of identity theft. Certain sources therefore labelled identity theft a misnomer or referred to the concept as `awkward.’ Some even demonstrate a complete disdain for the term. Others, on the other hand, embrace the concept and its accuracy. Clare Sullivan supports the usage of the concept of identity theft and states ``[d]ishonest use of an individual’s token identity by another person is a denial of the individual’s right to the exclusive use of his/her transactional identity, and its use by another person fundamentally damages the integrity of the individual’s token identity.” The acceptance of identity theft as a concept requires a stretch of the term theft and also a more progressive approach to the idea of property, which is a considerable challenge due to traditional meanings in the legal arena. The availability of a popular alternative—identity fraud—provides those opposed to the use of identity theft as a concept an opportunity to circumvent the problem. However, the problems associated with the usage of identity theft as a concept only proved to be the proverbial tip of the iceberg. The much larger challenge remains. This is the challenge of the problem definition. To address this challenge, this chapter shifts the discussion from the ‘legal’ to the public policy arena in an effort to develop a more thorough understanding of the definitional dilemmas. This shift of arena provides for a more comprehensive approach to the issue of problem definitions since it surpasses the rigidity of legal debate.
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Notes
- 1.
The Model Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General (2008): 14 states, “[t]he phrase ‘identity theft’ is a misnomer, as identity theft does not actually deprive a person of their identity. The offence of theft or larceny traditionally involves an appropriation of the personal property of another with the intention to deprive him or her of that property permanently. Wrongfully accessing or using a person’s personal information or forging proof of identity documents, without taking any physical document or thing, would not deprive the person of the ability to use that information.”
- 2.
Koops & Leenes (2006): 5 write how “‘[i]dentity theft’ is a rather awkward term, since identity is not something that is typically stolen. A characteristic of theft, after all, is that the owner no longer possesses the stolen thing. With identity, this is usually not the case: the victim of identity takeover still retains her identity. We should therefore speak of ‘identity “theft” ’ rather than of ‘identity theft.’ ”
- 3.
James Van Dyke, President and Founder of Javelin Strategy & Research, published a blog entry on April 14, 2010 with the title “‘Identity theft’: the sooner this term goes away the faster we’ll make the problem do the same.” In the post, he states “I have long disdained the term ‘identity theft,’ but because it’s stranglehold on the untapped power of higher understanding is supported by the highest laws of the land (the last two presidents have created ‘identity theft task forces’ and every federal, state and local law enforcement agency uses this same label) it won’t disappear anytime soon.”
- 4.
See for example Le Lievre & Jamieson (2005): 7 who note how despite the difficulty with regard to criminal law aspects identity theft has more of a personal emotive impact than identity fraud because it presents the idea of identity ownership which is then stolen by another individual.
- 5.
Sullivan (2009): 85.
- 6.
This challenge maintains a more extensive history through the discussion of data as property. See Prins (2006a).
- 7.
Identity theft and identity fraud are used both interchangeably by some and as separate concepts by others.
- 8.
Rochefort & Cobb (1994).
- 9.
Ibid: 15.
- 10.
Weiss (1989): 98.
- 11.
Stone (1989): 282.
- 12.
Rochefort & Cobb (1994): 15.
- 13.
Ibid: 3.
- 14.
GAO (1998).
- 15.
Ibid: 11.
- 16.
The GAO (1998): 20 states how, “[i]dentity fraud is difficult to track. Generally, the law enforcement officials we contacted told us that their respective agencies historically have not tracked identity fraud for various reasons. One reason is the lack of a standardized definition of identity fraud.”
- 17.
The GAO (1998): 43 states how, “[a]ccording to an official we contacted at VISA U.S.A., Inc., within the credit-card business, there is no standardized or industrywide definition of identity fraud.”
- 18.
White & Fisher (2008).
- 19.
Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105–318, 112 Stat. 3007 (1998) (amending 18 U.S.C. § 1028).
- 20.
United States Department of Treasury (2005).
- 21.
Ibid: 7.
- 22.
FPEG (2007): 8.
- 23.
Ibid.
- 24.
Ibid.
- 25.
OECD (2009): 9.
- 26.
Ibid.
- 27.
ACPR (2006): 13.
- 28.
Koninklijke Marechaussee (2003).
- 29.
De Vries et al. (2007).
- 30.
270 pages.
- 31.
Ibid: 18.
- 32.
Ibid.
- 33.
Representatives from the consumer complaint center and the expert center for identity theft described how they used the definition as a (rough) guideline. Otherwise, the definition seems to not have been embraced in the policy debate in the Netherlands.
- 34.
In an epilogue to his Master thesis, Peter van Schijndel reflects on the research conducted and the conclusions offered by de Vries et al. Van Schijndel recognizes the comprehensive character of the research conducted, but refutes the conclusions drawn by the authors. He even considers the potential acceptance and subsequent implementation of the definition by the Ministry of Justice dangerous. The definition set forth by de Vries et al. is, according to van Schijndel, a poor imitation or a bad copy of the definition presented by the Identity Theft Assumption and Deterrence Act of 1998 in the United States.
- 35.
Koops & Leenes (2006).
- 36.
Gerring (2001): 54.
- 37.
Gusfield (1981): 13.
- 38.
Rochefort & Cobb (1994): 21.
- 39.
Cheney (2005): 9.
- 40.
See for example Sproule & Archer (2006) and Koops et al. (2009).
- 41.
Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105–318, 112 Stat. 3007 (1998) (amending 18 U.S.C. § 1028).
- 42.
Cheney (2005). .
- 43.
FACTA states in Sect. 111(3) how “[t]he term ‘identity theft’ means a fraud committed using the identifying information of another person, subject to such further definition as the Commission may prescribe, by regulation.”
- 44.
Federal Trade Commission (FTC) (2004).
- 45.
Ibid.
- 46.
Ibid: 8.
- 47.
Ibid.
- 48.
Ibid: 10.
- 49.
Cheney (2005): 3.
- 50.
Jamieson et al. (2008).
- 51.
Interview February 9, 2010, Amsterdam.
- 52.
Skimming refers to the copying of the information on the black magnetic stripe on the back of a debit card in an effort to duplicate the card, obtain the pin code, and drain the account.
- 53.
Interview February 9, 2010, Amsterdam.
- 54.
Interview January 12, 2010, Amsterdam.
- 55.
Maatschappelijk Overleg Betalingsverkeer (MOB) (2006).
- 56.
In the yearly report of the National Forum on the Payment System in 2007, there is no reference to identity theft. Instead, the report specifically highlights evolving problems with respect to skimming and phishing. See Maatschappelijk Overleg Betalingsverkeer (2008). Even so, the following year, the Forum once again referred to the problem of identity theft in its yearly report. See Maatschappelijk Overleg Betalingsverkeer (2009).
- 57.
Dadisho (2005).
- 58.
Cheney (2005): 17.
- 59.
O’Sullivan (2004).
- 60.
Ibid: 8.
- 61.
GAO (2002): 6.
- 62.
Ibid.
- 63.
Lombardi (2006).
- 64.
Schreft (2007): 7–8.
- 65.
ITRC (2009).
- 66.
EPIC (n.d.). Identity Theft. Available at: http://epic.org/privacy/idtheft/#Introduction (last accessed July 4, 2010).
- 67.
Privacy Rights Clearinghouse (2009).
- 68.
McNally (2008): 19.
- 69.
Minutes of the second meeting of the core group of experts on identity-related crime, Vienna, Austria, 2–3 June 2008.
- 70.
Ibid.
- 71.
Koops et al. (2009).
- 72.
Weiss (1989): 98.
- 73.
Ibid.
- 74.
Whitley & Hosein (2008): 98.
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van der Meulen, N.S. (2011). Definitional Dilemmas. In: Financial Identity Theft. Information Technology and Law Series, vol 21. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-814-9_2
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