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Ann E. Donlan, CIPP

The President's Identity Theft Task Force is recommending that Congress adopt a national breach notification standard to supersede the existing 37 state laws, according to a Federal Trade Commission (FTC) official who spoke during a May 3 IAPP audio conference.

"We think it makes sense to have a single standard as opposed to the patchwork of standards that exist out there now," said Joel Winston, Associate Director of the Division of Privacy and Identity Protection at the FTC.

Winston, one of three expert IAPP speakers who detailed the task force's comprehensive findings and recommendations for a coordinated federal strategy to combat identity theft, said the group considered what exposed data should trigger notification. The group considered whether a breach of electronic data should lead to notification, or only in the event of exposure of any sensitive data. The task force took the position that a national standard should require notice to consumers if there is a "significant risk" of identity theft, he said.

"We don't think over-notification of consumers is to their benefit," Winston said.

The Executive Director of the task force, Ronald J. Tenpas, opened the audio conference with an overview of the group's mandate. Tenpas, Associate Deputy Attorney General at the U.S. Department of Justice, also described the process the group engaged in to reach its goals, concluding with the architecture of the two-volume report.

"One of the very specific charges of the executive order was that the task force return to the president with a strategic report … (on) steps that ought to be taken," Tenpas said.

Released April 23, the report is realistic in its recognition that any assault on identity theft must be waged from numerous fronts, Tenpas said during the audio conference. Tenpas said there is "no single thing that we can do that would be decisive in eliminating identity theft."

Tenpas told participants that it was "conceptually important to recognize that identity theft and loss of control of information are not synonymous events." The group, comprised of representatives from 17 federal agencies and departments, focused on "privacy injuries that produce identity theft" in one of two ways:

• Exploiting a consumer's existing accounts; or

• Opening new accounts in a consumer's name, running up the bills and then defaulting on payment.

Once the harm has been done, the identity theft lifecycle includes two additional steps — helping consumers overcome the financial hardships and credit difficulties that result, and initiating law enforcement efforts to catch the perpetrators.

"The report kind of lays out that cycle and adopts that framework and organizes recommendations around each of those steps," according to Tenpas.

Tenpas explained that the report was organized into two volumes because the group recognized from the outset that business groups, government and law enforcement agencies, consumer advocacy groups and federal lawmakers had worked on solutions to combat identity theft — long before the launch of the task force.

"It was important that the report be fair in acknowledging that work," Tenpas said. "… We found that most of those organizations, including the federal agencies, had some ambition to use the report as a vehicle for touting the work that they had done."

The solution was to devote an entire volume to detail "examples of good work that has been done" to provide a "detailed factual account of where we find ourselves" as well as the resources and steps that have been taken "with some amount of cross-referencing in the report.

The third speaker, Kirk J. Nahra, CIPP, Partner, Wiley Rein LLP, commended the task force for what he called a "very useful compilation about identity theft and security practices." (For more information on Nahra's presentation, see "White House ID Theft Task Force Releases Strategic Plan: What do Businesses Need to Know?" The Privacy Advisor, June 2007)

Winston described the recommendations in the strategic plan as "measured and thoughtful." He added, "They are not simple answers to complex problems."
After exploring how criminals get their hands on the data and who are the culprits, the focus shifts to how the public and private sectors can "intervene to keep information out of the hands of criminals."

Among the recommendations in this area is a reduction of the use of Social Security numbers (SSNs) in the public sector. The report states that, "As of 2004, 41 states and the District of Columbia, as well as 75 percent of the U.S. counties, displayed SSNs in public records."

Because SSNs are used in the private sector to obtain benefits, open accounts and identify people, Winston said the task force determined it was "premature to come up with any specific set of recommendations on how SSN usage should be restricted." Instead, the task force called for a review of ways SSNs are used in the private sector and ways they could reduce unnecessary use.

A key to preventing identity theft is education efforts for both consumers and law enforcement investigators, according to Tenpas and Winston. The new multi-year public awareness campaign could build from existing public and private efforts, Winston said.

"We think it's time for a really comprehensive education effort," Winston said.
Tenpas added that prosecutors and investigators could bring stronger, higher impact criminal cases with training on how to develop the cases and structure charges. Another aspect of the law enforcement recommendations includes the establishment of a National ID Theft Law Enforcement Center, which could help law enforcement agencies to coordinate their efforts, track cases, log statistics and detect crime ring activity in multiple jurisdictions. The report also calls for "technical fixes" in criminal statutes to "expand our ability to go after identity thieves," according to Tenpas.

The task force realized after talking with many identity theft victims who have struggled with bill collectors, inaccurate credit reports and the painstaking and time-consuming calls to clear their names that a key aspect of the task force's strategic plan must involve help for these consumers. There was a recognition that some victims, for example some who are elderly, will have greater difficulty trying to reverse the damage, and need and deserve "more individualized assistance," Tenpas said. Also, an effort should be made to ensure that victims can recover from the criminal perpetrators the value of time lost attempting to repair damage caused by ID thieves.

One tool that the states have offered consumers is the ability to freeze their credit to prevent ID thieves from using their personal information to open accounts and charge up the bills in their victims' names. But the task force decided that the effectiveness of this approach needed more study.

"This is maybe a moment to catch our breath and … go back and ask ourselves, ‘How well are these things working?' '' Tenpas said, before "plunging into further national activity in those areas."

This audio conference, The President's Identity Theft Task Force's Strategic Plan: What Lies Ahead, is available for sale on the IAPP's Web site, iapp.org, in the Education section.


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