THE BLOG
11/19/2010 11:49 am ET Updated May 25, 2011

Colorado Supreme Court: Using a Stolen Social Security Number is Not Identity Theft

I feel like my head is going to explode.

The Colorado Supreme Court has ruled "that using someone else's Social Security number is not identity theft as long as you use your own name with it."

The defendant in this particular case had admitted to using a false Social Security number on an application for a car loan, and to find employment. The court ruled that since he had used his real name, and the Social Security number was only one of many pieces of identifying information, he "did not assume a false or fictitious identity or capacity," and "did not hold himself out to be another person." The court found the defendant's use of a false Social Security number "irrelevant," since the number was provided to fulfill "a lender requirement, not a legal requirement."

The Identity Theft Resource Center concurs with the three dissenting judges. The use of a false SSN even without using the victim's name is one of the core issues of identity theft, whether the SSN has been issued or fabricated. As Justice Coats said, "Because I consider the defendant's deliberate misrepresentation of the single most unique and important piece of identifying data for credit-transaction purposes to be precisely the kind of conduct meant to be proscribed as criminal by this statute." (18-5-113 Criminal Impersonation).

This is yet another example of the lack of justice in the judicial system. The justices erred by failing to understand what identity theft really entails, especially when considering the distinction between a "lender requirement" and a "legal requirement." Whether or not a Social Security number is legally required in order to obtain credit, it is still a legal identifier in many circumstances.

42 USC Chapter 7, Subchapter IV, Part D, Sec. 666(a)(13), a federal law enacted in 1996, determines when the numbers should be used. This law requires a Social Security number to be recorded for "any applicant for a professional license, driver's license, occupational license, recreational license or marriage license." It can also be used and recorded by creditors, the Department of Motor Vehicles, whenever a cash transaction exceeds $10,000, and in military matters.

"Synthetic identity theft" occurs whenever an identity is partially or entirely fabricated. This commonly involves the use of a real Social Security number in combination with a name and birth date that are not associated with the number. This type of fraud is more difficult to track because the evidence does not appear on the victim's credit report or on the perpetrator's credit report, but rather as a new credit file or subfile. Synthetic identity theft is a problem for creditors, who grant credit based on false records. It can also create complications for individual victims if their names become associated with synthetic identities, or if their credit scores are impacted by negative information in an erroneous subfile.

With this decision, the Colorado Supreme Court has fundamentally upset the balance of law, effectively opening a Pandora's box of problems. This saga is far from over.

Since the law won't protect you, at least in this scenario, consider investing in McAfee Identity Protection, which includes proactive identity surveillance to monitor subscribers' credit and personal information, plus access to live fraud resolution agents who can help subscribers resolve identity theft issues.

Robert Siciliano is a McAfee consultant and identity theft expert. See him discuss identity theft victims onThe Morning Show with Mike and Juliet. (Disclosures)