Towards a common identity? The harmonisation of identity theft laws
| Date | 05 October 2015 |
| DOI | https://doi.org/10.1108/JFC-11-2014-0056 |
| Pages | 492-512 |
| Published date | 05 October 2015 |
| Author | Jonathan Clough |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
Towards a common identity?
The harmonisation of identity
theft laws
Jonathan Clough
Faculty of Law, Monash University, Clayton, Australia
Abstract
Purpose – The purpose of this paper is to consider potential criminal law responses to the global
challenge of “identity crime”. In particular, it focuses on a specic offence of “identity theft”. It begins
with a discussion of the meaning of “identity” in the context of modern transactions, before dening
“identity crime” and related terms. Legal responses are then considered before turning to the importance
of harmonisation. The transnational nature of modern identity crimes makes it essential that law
enforcement agencies not only have suitable offences at their disposal but also the frameworks to
facilitate international cooperation.
Design/methodology/approach – Given the increasingly transnational and organized nature of
modern identity crime, this paper adopts a comparative approach. It draws upon provisions from
Australia, Canada, the UK and the USA. It also looks at responses to identity crime at the regional and
international level.
Findings – Although there is currently no international instrument which specically and
comprehensively addresses identity theft, it is argued that there is an urgent need for further
international discussion as to the desirability and form of identity theft provisions. While international
agreement may not be reached, such discussions are important in assisting countries to develop
appropriate legal frameworks and capacity to address the modern fraud environment.
Originality/value – It is hoped that this paper will contribute to, and facilitate, important ongoing
discussions as to the most effective ways in which to tackle identity crime at the national and
international levels.
Keywords Fraud, Cybercrime, Identity crime, Identity theft
Paper type Research paper
1. Introduction
In December 2013, in the US state of Virginia, Tobechi Onwuhara was sentenced to
almost six years in prison for his role in a home equity line of credit (“HELOC”) fraud
scheme (United States Attorney’s Ofce, Eastern District of Virginia, 2013), Onwuhara
and his co-conspirators used fee-based Web databases to identify potential victims with
large balances in HELOC accounts (United States Attorney’s Ofce, Eastern District of
Virginia, 2013). Armed with identity information including name, address, date of birth
and social security numbers, they would then use other online databases to obtain
further information that would enable them to answer security questions; for example,
the victim’s mother’s maiden name (United States Attorney’s Ofce, Eastern District of
Virginia, 2013). Having then obtained credit reports verifying the personal information
and account balances, they would contact the victim’s nancial institution and
impersonate the victim; transferring large sums of money into another account from
The current issue and full text archive of this journal is available on Emerald Insight at:
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JFC
22,4
492
Journalof Financial Crime
Vol.22 No. 4, 2015
pp.492-512
©Emerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-11-2014-0056
which the funds could be electronically transferred to other accounts belonging to the
offenders (United States Attorney’s Ofce, Eastern District of Virginia, 2013).
This case illustrates perfectly many of the challenges presented by electronic frauds
in general and identity crimes in particular[1]. First, as the funds acquired were all in
digital form, enormous sums of money could be transferred effortlessly, both within and
outside the USA. Although actual losses were approximately US$13 million, it was
alleged that the offenders attempted to cause losses of US$38 million (United States
Attorney’s Ofce, Eastern District of Virginia, 2013). To attempt to steal such large
amounts of money as cash would be an entirely different proposition.
Second, the information necessary to gain access to the funds was acquired online,
and there were no face-to-face meetings with bank staff. Even where phone calls were
made, the “conspirators used caller-ID spoong services, prepaid cell phones and PC
wireless Internet access cards, and transferred victims’ home telephone numbers to
impersonate the victim and avoid identifying themselves” (United States Attorney’s
Ofce, Eastern District of Virginia, 2013).
Third, although the victims were in the USA the frauds were transnational, with
funds transferred to domestic and overseas bank accounts. One co-conspirator was
based in Nigeria, while Onwuhara himself was arrested in Australia and extradited to
the USA (United States Attorney’s Ofce, Eastern District of Virginia, 2013).
We are all aware of the extent to which Information and Communication
Technologies (“ICTs”) have transformed many aspects of our lives. We are, at least in
theory, capable of being instantly connected to the approximately 2.7 billion people
(International Telecommunication Union, 2014) and over one trillion Web sites
(Australian Law Reform Commission, 2012) on the Internet. Mobile telephony is now
accessible to 96 per cent of the world’s population (International Telecommunication
Union, 2014), and the social networking site “Facebook” alone has over 1 billion monthly
active users (Facebook, 2014).
We are perhaps less conscious of how this technology has also transformed notions
of identity. Increasingly, it is our usernames, passwords and other digital identiers that
allow us to access a range of services, including nancial services. For example, in 2013,
61 per cent of adult Internet users in the USA conducted banking online (Fox, 2012), with
35 per cent doing so from their mobile phone (Fox, 2012).
Every time we sign up to a new online account or pay for goods or services online, our
information is potentially stored. This aggregation of data provides a rich source of
identifying information which may be searched and accessed remotely (Steel, 2010,
p. 505). The US retailer “Target”, for example, was recently the victim of a breach of its
networks, compromising approximately 40 million credit and debit card records and
another 70 million records containing customer information (Reuters with CNBC.com,
2014). The trend is exacerbated by commercial imperatives to consolidate and link our
digital identities (Gercke, 2007). .
This combination of accessible data giving access to funds and other services
provides a tempting target for criminals. The use of false identities in the commission of
crime, so-called “identity crime” has been described as “arguably, one of the most
pressing nancial crime problems that has faced developed societies in recent years”
(Smith, 2013). Although primarily associated with the commission of frauds, identity
crime encompasses other forms of serious and organized crime including money
493
Harmonisation
of identity
theft laws
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