IDENTITY THEFT VICTIM ASSISTANCE WORKSHOP
TUESDAY, OCTOBER 24, 2000
A T T E N D E E S
P R O C E E D I N G S
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MS. CRANE: They find bits of information about themselves, including birth certificates, including utility bills, including, you know, various forms of identification to all of the creditors where there is, let's call it a fraud account for now, either fraudulent activity on their current accounts or a new fraud account opened.
So, we understood that what was -- that they were already incurring copying costs associated with all of those documents because they would keep a copy, they'd keep their original, and send a copy, that they were already incurring the expense of pulling together those documents in terms of time, and that they were already having to provide most of this information in one form or another, you know, previous addresses, previous names.
All we tried to do was standardize it. We didn't try and add any burden, we just tried to standardize it so that they could fill it out once, copy it once and have something that would work for a variety of creditors.
What I was hearing yesterday was that -- that the idea of deconstructing that so that what would be standard would only be this simple declaration, I am Joanna Crane, I did not commit the crime, and I swear to this under penalty of perjury. But then don't you still leave the victim with this burden of having to produce to each of the financial institutions where there's a fraud account, all of the supporting documentation? So, you're putting back on the victim the burden you're trying to take off of them, which was compiling the documentation, copying it, sending it out and having to do it ten different ways instead of one way for ten institutions.
So, what do we gain by reducing this to just a one-page declaration?
MS. FRANK: We didn't say necessarily just a one-page declaration. At least this is how I perceive it, is that you'd have a one-page declaration similar to what Werner was saying, okay? Then you'd have a police report that you would have list the fraud accounts that were on the credit reports that you would have to copy for all of them. That would be one piece.
MS. CRANE: So, you would have to have a police report? Here it's an option.
MS. FRANK: You would have to have a police report or at least something from the DMV or some other agency, maybe the Federal Trade Commission, and then a cover letter. And what I know from going through this, Joanna, is I'm going to write a different letter to Chase Manhattan Bank about my particular account problem then I am to let's say Sprint who I have another account with, then I am with the IRS for someone working under my name. And I think that's what my big concern was with this, was -- and I don't have a problem with a couple pages of a similar thing, like this is my name, this is -- you know, I have to give my Social Security number, whatever. The problem was is you were providing to all of the creditors all of the documentation --
MS. CRANE: Well, that depends on how you read it.
MS. FRANK: Well, no -- and more information about all the other fraud. If they just see a police report, that's all they need. This is a lot more copying than --
MS. CRANE: Yeah, okay. So --
MS. FRANK: A lot more copying. The other issue is is that when they're writing to the creditors, they will not have those billing statements unless it was a skimming incident.
MS. CRANE: That's exactly what this says. This says if available. It doesn't say you must provide.
MS. FRANK: Right. But I need to tell you, my fear is if this comes out as under the auspices of the Federal Trade Commission and it says optional, credit card fraud agencies are going to say, this is what the FTC says and we're not going to help you clear your credit until you do it, and that's sort of like --
MS. CRANE: You lost me there.
MS. FRANK: Okay. What I'm referring --
MS. CRANE: This is -- this is not -- this is a declaration that was developed by the Federal Trade Commission.
MS. FRANK: Right.
MS. CRANE: But our ownership of it stops there. The transaction is between the victim and the bank.
MS. FRANK: I understand, I understand that. But, Joanna, what I'm saying in reality, when what really is going to happen is that it comes out as a -- you know, a sample or a usable form, every creditor who doesn't want to make up his own form or every creditor who gets encouraged to use it is going to say, if you don't fill out everything here, if you don't do everything here, we're not going to clear you from the credit reporting agencies. And that's my concern.
MS. CRANE: Okay. But again, let's look at what it says. After how the fraud occurred and --
MS. FRANK: I don't have any problem with the first page.
MS. WELCH: Now, see, I would have problems with the first page. Where are you?
MS. FRANK: Some of this --
MS. WELCH: I would have problems if I was the victim.
MS. CRANE: Can I just back up? I'm sorry, I didn't allow Hugh Stevenson to introduce himself or to sign in on our schematic. Would you like a copy of this to work from as well?
MR. STEVENSON: No, that's okay, I've got all this stuff. Go ahead, go ahead.
MS. CRANE: Okay, great. I'm sorry, go ahead.
MS. WELCH: It talks about, I have been previously known as and you want every name I've ever been married under? Can we time limit this, maybe within the last year or two?
MS. CRANE: Okay. So, would it be appropriate to say, names used at the time of the occurrence?
MS. WELCH: Right.
MS. CRANE: And the same with addresses, instead of getting --
MS. WELCH: Right.
MS. FRANK: For the last five years or the last ten years. I'll tell you why they want -- why the credit reporting agencies want to know that is because on the credit report it will list that.
MR. RAES: Joanna, I'd like to just comment. Before we get into breaking this down line by line --
MS. CRANE: Um-hum.
MR. RAES: -- you know, I want to revisit, I really don't know if there's a need for this declaration. From a long portion of perspective, I see the need for the affidavit because that is the legal vehicle -- I know I'm repeating from what you heard yesterday. But that's the -- the affidavit is the legal vehicle that is the signal to the financial institution something is amiss here, I'm signing under penalty of perjury it's amiss, take or credit this information back to my account. To me, in law enforcement, really that's all that's needed.
I see problems with this affidavit just philosophically in a couple of areas. Number one is, there's too much information here. And what hands it's going to get into -- and that could be a whole two-hour discussion. But the other thing is, who's going to take this and do anything with it, because I personally don't want the victims to provide all that information. Why?
I mean, that's the financial institution's responsibility in most cases to work with the victim.
MS. CRANE: Okay. Can I just respond to your two questions?
MR. RAES: Sure.
MS. CRANE: The need for it. The need for it was because victims have told us that this is what they're having to provide to the creditors where they're disputing accounts.
MR. RAES: Why do --
MS. CRANE: They don't just have to provide an affidavit of who they are and attest to their truthfulness. They have to provide supporting documentation that they have what they have to be able to show the creditor that, in fact, they're not the perpetrator.
MR. RAES: Okay. But that's basically illegal.
MS. CRANE: And I know you're saying why, why would the creditors want that? Well, we have to ask the banks.
MS. WELCH: Everybody has their own affidavit that's required and requiring different information. I do agree with the concept of getting one standard document for people to use, but law enforcement takes all of our affidavits today and they're not --
MR. RAES: Right.
MS. WELCH: So --
MR. RAES: Yeah, but they're not this lengthy. They're not --
MS. WELCH: No, they're not this lengthy and I don't think the FTC is trying to say it has to be this lengthy. I think they've done a really good job of putting everything that everyone has asked for at any time on an affidavit in a document, and then from there will bring it down to something usable. I mean, this is -- this would be scary to me if I was a victim.
MR. RAES: Oh, yeah.
MS. CRANE: All right. Now, to answer your second question then, we'll go to Steve. Your second question, who does it go to? It does not go to anyone other than who the victim wants to send it to, who will accept it, who's a creditor. In other words, this is not going to be broadly distributed to some general group of people outside the control of the victim. The victim will say, I need to send this --
MS. FOLEY: That's incorrect.
MS. CRANE: Excuse me, let's not interrupt each other. If I say, I have an account at Chase Manhattan, Bank of America and Ameritech and I'm working with fraud counselors at those three institutions, those are the three that get it. I am not also going to be sending it to a panoply of other creditors with whom I have no relationship. So, I don't understand the fear of it getting into the wrong hands.
MR. RAES: Okay. Well, the wrong hands could be -- I'll use some stereotypical examples, the college kids who get this on the receiving end in customer service not necessarily the fraud investigator, how it's filed in the financial institution is one example.
MS. CRANE: Would that be a concern?
MR. RAES: You know --
MS. WELCH: It certainly happens. I mean, there's nothing in the --
MR. RAES: It can.
MS. WELCH: I mean, to stop it from going to a call center, but that's --
MR. STEVENSON: Well, can I ask a question?
MS. WELCH: But that's regardless. The information is already out there on the system anyway. So, if they want to get at it, they can get at it without the affidavits.
MR. RAES: That's correct, and I'll agree to that.
MR. STEVENSON: So, that is an issue that exists regardless of whether we do a standard form or 100 different forms.
MS. WELCH: Absolutely.
MR. STEVENSON: The information that you're filing could get into the wrong hands.
MS. WELCH: Absolutely. They don't even need an affidavit for it to get into the wrong hands.
MS. FRANK: Or not shredded or -- if it's overly broad, you won't need that much --
MS. CRANE: Steve is next.
MR. MONSON: It comes back to the question that I posed yesterday, and that has little to do with the substance of the form as it does -- because my understanding is this is more about victims yesterday and today.
Somewhere along the line, I think, and it was already mentioned here is where does this information go. I think as a law enforcement official I would like -- if this is to be collected, I would like to assure the victim that, number one, there's a level of confidentiality somehow. I don't know how that's accomplished right now. And that it goes not just shotgunned out, even though it may be to everybody that we believe is the economic victim of the fraud, not the personal victim, that it -- I think it needs to go through, as I used the term yesterday, an honest broker. Who, I don't know, would be the honest broker. But the honest broker then is in a position to sit with the victim, take this information, and it may be somebody that the victim will essentially trust. It could be our local victim-witness coordinators either in the police department or the prosecutor's offices and so forth, because that's part of what their job is, to work with victims. And that dissemination of the information will flow through that honest broker on a need-to-know basis and then we have an ability to know exactly to whom the information goes.
So that when Ms. Welch's bank wants the information, we know that it doesn't go to customer service. We know, in fact, that it went to the fraud bureau and then we're in a position to assure the victim that it just didn't go out there into the ether, it went to an appropriate place where something real is going to happen with it.
And I think before we even get into this, that's -- that really needs to be addressed.
MS. WELCH: But those are internal policies to each bank. Now, Chase does have internal policies on an ID theft. If a call comes into the service line, they automatically know it transfers to the fraud department. They don't talk to the customer, only the fraud department talks to the customer whether it be check fraud, credit fraud, it doesn't matter. That's Chase, but that's Chase's internal policy.
Everybody has to adopt that internal policy for what you're saying to happen because it's nothing that anyone can mandate. No one can say it has to go here without policy in place at the institution.
MS. CRANE: It's only coming from a fraud department. It doesn't materialize out of the earth. In other words, this would be a document that's used for a relationship where there is an individual on each side. So, to try and add a broker in that relationship, to me, the victim then loses control because they're no longer in a one-to-one relationship with the fraud counselor at Chase Bank.
I'm sorry, Linda, you've been waiting a long time.
MS. FOLEY: That's all right. You brought up an interesting question, and I brought it up yesterday. It's the confidentiality. And I -- we'll possibly need -- because there's a legal issue and it will probably need to be dealt with legislatively or somewhere within the legal system.
The problem I have, and I said it yesterday, was my affidavit of fact had a lot of information that the imposter did not yet have, ended up in the imposter's hands, and this is part of our legal system, it's part of the discovery if it goes to court and we know a lot of identity theft cases never get to that point. Let's be honest. It's a small percentage, but it does happen.
She had my name, my address, my driver's license number, my Social Security number. She already had that information anyway. She was my employer. But she didn't have passwords on the account. When it went to court, okay, I was able to point to who had done it to me.
MS. CRANE: Tell me how it's different using a standard form where it's simplified for the victims, say they only have to fill out one form, and having discovery done in the same case where they're going to discover 11 different documents that are still discoverable that have this information in 11 different ways. I just don't see where the harm is accelerated.
MS. FOLEY: Well, because what I was requested to provide to the creditors was nowhere extensive as this, and what was then subpoenaed as records --
MS. CRANE: Well, then, let's pare this down.
MS. FOLEY: Some of this information --
MS. CRANE: But let's not raise issues that can't be dealt with.
MS. FOLEY: Right. Well, what I'm saying is that some of the information on here, in trying to make something that fits all situations, this entire document then becomes part of the legal record, which is then passed on to a defense attorney. By saying -- some of this information is appropriate for a CRA, for instance, or for something which would never be subpoenaed into the court case at that point, because there were subpoena records -- they wanted the affidavit from First USA because the credit card company was one of the ones involved.
Some of this information they would not have needed or would not have been part of the record for the court to -- I'm trying to control the amount of information that imposter gets. I like the idea of confidentiality and it would solve a lot of issues for me if somehow I could be reassured that none -- if I was going to do a one-form-fits-all, that none of that information or restricted amounts of that information would then be passed on through the legal system, or if it got to the defense attorney it would never get to the imposter. That's a legal issue.
MS. CRANE: I don't think that's --
MS. FOLEY: But if I'm trying to do everything for everybody --
MR. STEVENSON: Yeah, I think here it would be helpful to get some -- I think that there is a point -- you definitely have a point there. But it would be helpful to get some of the more particular examples that people see of what information here creates that problem, and you all have identified several of them. But I think the other examples would be helpful.
MR. RAES: Joanna, if I could --
MS. FRANK: Let me just ask you --
MR. RAES: Oh, go ahead, ladies first.
MS. FRANK: I was just going to say on number four on the last page, 12 of 12, I had a concern, Joanna, that it says here, you know, you may also provide a form to the identity theft clearinghouse, which is great. If I were a victim I would feel safe with them.
But then it says, this information -- about the middle of the paragraph -- may be shared where doing so may assist in resolving identify theft related problems with consumer agencies -- I mean, government agencies, consumer agencies and other private entities. I really have a problem with that. That means it's being extended -- you know, you need to clarify, this is not really notice and this isn't really choice and this isn't really -- I don't have access to where it's done.
So, I'm real uncomfortable about it being shared unless I know to who it's being shared with.
MS. CRANE: This information is information similar to what we have in our database and we're contemplating -- you know, the suggestion here was rather than filing a separate complaint with the Federal Trade Commission, we would backload this into our complaint database and that is what's referred to here. So, this would be available on consumer sentinel to law enforcement.
We also plan to make referrals to -- well, we're asked to refer cases to consumer reporting agencies, which we have not yet gotten the mechanism to do, but that is part of our mandate.
So, that's what that goes to. We would backfill information from here that does relate to our complaint forms so that the consumer would get an FTC complaint simultaneously with filing this. And that's what we're --
MS. FRANK: I just think whether you're going to do it on the website or here, I think, again, it gets to the issue of the privacy principles, of giving notice and giving specific notice as to who it's going to be shared with.
MS. CRANE: Well --
MS. FRANK: And because of --
MS. CRANE: Maybe --
MS. FRANK: Just a minute. If there is something and they have access to be able to see it in case it's incorrect and then have access to correct it, that's fine.
MS. CRANE: Okay. This is -- I am saying that the problems you have with this, you must also be having with our data clearinghouse.
MS. FRANK: Then I will be, yes.
MS. CRANE: So, we need to sort of talk about that --
MS. FRANK: But I didn't know you were doing all that because I didn't think it was then clear on your website how many other private entities might be getting it. So, it is the same issue.
MS. CRANE: When you say get it, it is -- as I said, we share it with the nationwide law enforcement. We have been asked to find a way to refer complaints to consumer reporting agencies and other appropriate entities who can assist the victim. So, if we knew that Chase wanted to really assist victims, we were trying to find a way to let them know what victims had complained about Chase. So, that's what we have in mind.
MS. FRANK: And I'm not sure if you and I are on the same wavelength, though. I don't have a problem with doing that. If a victim knows it, I don't have a problem with it. I mean, if I were a victim and you said -- I mean, you've already helped some of my victims, so I want you to know that I honor that. But I never will refer, for example, a victim to you without the permission, may I refer this to these people, and that's my concern--
MS. CRANE: Okay.
MS. FRANK: -- is that once I fill out some kind of document and it's this nebulous, it scares me because in case it's incorrect or someone has somehow filed as an identity theft victim under my name and they're not, then how do I correct that? I think, you know, those of us who are victims have been a little bit more sensitive to this, but we want to know where it's going and how to correct it.
MS. CRANE: Okay, I hear you. Can we go around this way? Is that okay? Because I'm not quite sure who had their hands up first.
MR. GOLLIHER: Just a point of clarification on this paragraph on page 12 of 12. Isn't that taken verbatim from your When Bad Things Happen to Your Good Name?
MR. GOLLIHER: Okay. So, in other words, anybody who got that booklet was at least told this. Whether it was detailed as is being requested, then, no, it's not --
MS. CRANE: Right. I think what Mari contemplates is before we would give Chase a consumer's name, we would have to call each consumer and say, we're about to release to Chase, the complainants --
MS. FRANK: No. I meant you might say something like, if you do this, any creditor who you are dealing with, we -- we want you to know that we might contact them. So, you wouldn't have to do it ahead of time and it would be more of an opting-in from the beginning.
MS. CRANE: Okay, all right. We'll work on getting more specific with that paragraph in there.
MS. FRANK: I can help you with that later.
MS. CRANE: Werner?
MR. RAES: One more comment about the overall document and I'm going to slow down and work with you line by line to be productive. When victims call me and they say I have this affidavit that -- and I'll use Chase because you're here -- Chase sent me, you know, I'm overwhelmed or do I have to do this, I'm going to basically tell them no, the only thing you're required to do is fill out an affidavit. If you don't have one, go get one at the stationery store. Fill that out and sign it. You do not have to have to notarized, there's no law to that effect. Send it back to them and force their hand to respond to you yes or no.
Now, I work close with Chase and all the banks and they're not my enemy, believe me. We have a partnership. But step one for law enforcement is getting Chase to accept the affidavit in my example, become the victim, get their investigator working hand-in-hand with me, and the vehicle for doing that is the affidavit. There's no legal requirement to do this as a nicety. Remember yesterday I talked a lot about a wish list, things we want to do, things we'd like to do. There's no law that says they have to do this, no law that says that says they have to notarize it.
MS. CRANE: Understood. I mean, there's definitely no law. But to get the job done, it seems like they need the information.
MS. WELCH: But there is something, for instance, here, as everyone knows, I'm on the non-credit side. Everything we do is governed by the UCC. The UCC says what you have to do to submit a fraud claim, what information you must give the bank. The UCC modify it, which we do in our terms and conditions. And in there we say, you must have a notarized affidavit. So --
MR. RAES: Well, but there's cases --
MS. WELCH: -- I don't really --
MR. RAES: Well, there's case law, though. I know in California and other states there's case law that says that that is not enforceable because of the financial burden placed upon the victim.
MS. WELCH: But if it's not a financial burden. If there's a Chase there that they can walk into --
MR. RAES: Sure, sure.
MS. WELCH: -- which everyone could get it for free, then that's a hard -- I mean, I don't want to -- the only reason I'm raising this is I don't want people to say, oh, no, you don't have to because -- then it puts --
MS. FRANK: If the bank pays for it, it's fine.
MR. RAES: All I want is to get it to the level of the bank and then I can work real good with the -- there's no problem with the investigators.
MS. CRANE: Okay, Steve, you had your hand up.
MR. MONSON: The question for you, Joanna, has there been any determination that your clearinghouse database is or is not covered by the Freedom of Information Act? Has anybody -- and if you're saying it's not, has anybody challenged that?
MS. CRANE: Let me just try to --
MR. MONSON: Because I think that becomes an issue here in the statement.
MS. CRANE: Well, it's -- I mean, we're covered both by the -- what's it called, the --
MR. STEVENSON: Yeah. The answer would be yes, it is covered by the Freedom of Information Act, which has various exceptions and so probably Exemption 7 regarding investigations would provide some protection, Exemption 6 regarding privacy would provide some protections, and there may be some others that might have some application in particular instances. But that is one of the -- obviously, we have to --
MR. MONSON: Would it be within the realm of possibility to state that the -- at least -- well, of course, this is going to be a standard statement, but if you file with FTC somewhere along the line, that FTC considers your filing to be exempt from FOIA under these provisions, understanding that there's going to be another attorney out there who will challenge it. I mean, we all know that, that's what we get paid for.
MS. CRANE: We'll have to take that up with the General Counsel again and see whether there's something that they would want to --
MR. MONSON: I mean, that would be a concern that I think is legitimate. It again goes to that protection that victims want an assurance about, that they are not going to be revictimized in this process.
MR. STEVENSON: I think that your question itself identifies that there is that trade-off. But you don't want to overpromise here because, as you say, you don't know what some attorneys --
MS. CRANE: Exactly.
MR. MONSON: We as lawyers work in weasel language. That's not the issue. The point is to give as much assurance to victims, because maybe if somebody comes in and says, well, I want access to your database, then the Federal Trade Commission or Justice has a right to say, well, fine, here's the -- we're going to give notice to everybody and allow them to come in here and challenge your challenge. Wouldn't that be fun?
MS. CRANE: And, Mallory, you've been waiting forever and a day. I'm sorry.
MR. MONSON: Sorry to take your time.
MR. DUNCAN: I apologize. I was not here -- I could not be here yesterday. I had spoken with Betsy before. I'm not sure if she brought up the retailer concern with fraudulent fraud. Was that discussed yesterday?
MS. CRANE: No, I'm sorry. Go ahead.
MS. FRANK: Mallory, where are you from?
MR. DUNCAN: National Retail Federation. The problem we're seeing is that in a large percentage of claimed identity theft there, in fact, is not an identity theft that's taken place. The classic example of this is the father who tells his son, you know, take my credit card, go out and buy yourself a new pair of jeans for school. The son goes down to Dillard's or to Macy's or wherever else, he buys Levi's, he buys Tommy Hilfiger, Polo, everything else. A month later, the father gets the bill back, looks at it and says, $800 for back-to-school clothes. I think you were going to spend 50 bucks.
He calls the retailer and says, someone used my card without my permission, it's not my act. And it's registered as an identity theft concern.
What -- the retailer is in a difficult situation. They have to balance what appears to be a claim of identity theft against what's probably an authorized unauthorized use. And they typically have developed forms, and each retailer has its own standards much simpler than this form as a way of trying to distinguish between those two kinds of cases.
And I think you would get a fair amount of pushback from retailers, not on true identity theft cases, but on the ability to separate out the false identity theft claims from the regular ones if they were required to use a form that's quite this comprehensive.
MS. CRANE: What would you take out? Where do you see that we could start eliminating?
MR. DUNCAN: Well, there are -- typically what they want to find, and again, I don't know how much of this is public record, so I'm going to be circumspect with what I state here.
MS. CRANE: This is on the public record.
MR. DUNCAN: Okay. I'll be very circumspect. They're trying to determine very specific facts that relate to that transaction and relate to that person's commitment to the claim that there was identity theft going on in this case.
So, for example, they may have a one-page form, first of all, much easier to fill out, and secondly, they may ask for very specific details, and thirdly, they might say, not all do, but they might say, I agree that I am willing to prosecute the person who perpetrated this fraud if they are found.
Obviously, in a case where it's a father and son and the father thinks about it and he says, you know, I'm not really willing to do that, I did authorize my son, perhaps I should discipline him in some way, but I'm not going to sign a document that says that. That tends to help ferret out those kinds of gray area cases. I don't think this form, if it goes to 100 different companies, does that.
MS. CRANE: It only goes to companies where the victim believes that there's been identity theft, and in that case, the company may be in that same position, they're trying to ascertain whether the victim is a true victim or a fraudulent fraudster. So, it sounds like --
MR. DUNCAN: Well, in my example, the company is going to want to have it's own form focused on ferreting that distinction in addition to a generic form like this one.
MS. CRANE: Um-hum.
MR. DUNCAN: And I think that's -- based on the comments I heard earlier, I think for people who are true victims of identity theft, the idea of filling out even more forms might be a problem.
MS. FRANK: Exactly.
MS. CRANE: Well, let's figure out what we can take away then.
MS. WELCH: Can I just ask one question? Do you, from the retailers' perspective, look at this form as the only real contact they're going to have with the victim? And I still think that's an issue. And at Chase, we ask a lot of these questions, but we do it on the telephone, we're talking with them.
Now, we do want this information that's in here, but we don't require people to fill it all out. We talk with them, we get the information, we have what's called an interview. Now, are the retailers not planning on doing that process or can you not answer something so generally for all?
MR. DUNCAN: Again, it depends on the retailer. Many retailers do a telephone interview with the person as well, and basically, in some cases, they're looking for bona fides, is this a true problem, a problem that we're seeing in a number of different locations, or is this someone who's playing a game. And unfortunately, about -- at least I'm told -- 50 percent of the claims of unauthorized use occur when there's a family member involved. How much of that is true identity fraud and how much of that is in this gray area, it's very difficult to determine without some sort of back and forth communication with them.
MS. CRANE: Let's start going through here, but go ahead.
MS. FOLEY: You do a lot of telephone interview information, a lot of this there. May Mari or if there's another attorney on the panel can sort of answer a question. If something's in writing, that's discoverable, it can be passed on.
MS. CRANE: Right.
MS. FOLEY: If something -- if you have done a telephone interview, okay, and I've given you some of this personal information that you've wanted and my detective contacts you and it's going to court and we need documentation to show that a crime occurred, do they get those telephone records as well or only the paper information you get?
MS. FRANK: It becomes paper when you write down notes, so that's just --
MS. WELCH: We have a system that it's inputted in, but truthfully what they usually want is they want the affidavit, they want copies of checks -- in my case it's usually check fraud -- checks. If they don't ask for that, we don't give it unless it's asked for specifically.
MS. FOLEY: So that would be a way of protecting your victim from some of this other information becoming more public again through the court process.
MS. FRANK: That's --
MS. CRANE: Let's figure out what we want to take out.
MR. GOLLIHER: This is a question that's intended to follow your lead here. A question to the retailer and the banker, do you ask about all of these other accounts when it's only yours that you're interested in?
MS. WELCH: We may ask just to kind of touch the water on it if you think you've really been affected. But we would never get account numbers. Usually -- actually what happens with any victim of fraud is they will tell you their entire life story. So, you don't have to ask them a lot.
MS. CRANE: So, as an initial matter -- okay.
MR. GOLLIHER: Thank you.
MS. CRANE: I think the resolution of the group is that rather than have everything to all, have only that institution's account information and attached documentation, if you have a billing statement or a check or whatever going back to them. All right. So, question 21 would be --
MS. FRANK: We're just hearing from the retailers --
MS. CRANE: See, that's not the part I've got the problem with.
MS. FRANK: Just a minute. Let's go back to this --
MS. CRANE: The problem that I get here --
MS. FRANK: Let me just go back -- and I think, Joanna, I want to kind of talk about what you said, which is I was hoping you would say, which is that the retailer needs their specific information, as you were saying, and that's what they want in either a cover letter or some document. They don't have the time to read all the others and aren't interested anyway. And so, it's more than the information that they need to hear about my 10 or 15 other accounts. So, yeah, that would be very helpful.
MS. CRANE: Okay. So, that's a given. Go ahead from there. Go ahead.
MR. DUNCAN: Well, I was just going to say, while we're not particularly interested in the others, it's a factor. Have you been victimized elsewhere is a factor, but the details --
MS. FRANK: That's a yes or no answer though.
MR. DUNCAN: But the details of it are not essential, that's correct.
MS. CRANE: Well, I mean, again we look at five or six fraud affidavits and several of them asked all accounts, all affected accounts, all institutions. So, we thought that was fairly standard. If we're hearing that it's not, we'll take it out.
MR. DUNCAN: Well, I -- I'm sorry. I think what you saw by looking at the others, if you're looking at retailers, is that their fraud affidavits are designed to get at slightly different things depending on the typical customer they have and what their historical pattern has been in terms of fraud. I guess that's a generic concern with a document like this, is that the retailer is going to want to tailor it anyway.
MS. CRANE: Well, the idea is to try and provide something that will simplify the burden for the victim. So, if your feeling is that that's a non-starter because every retailer is going to want to tailor it, then I guess we can only go so far.
We can lead a horse to water, we can put a model out there, we certainly cannot make it mandatory or anything. We're hoping there will be buy-in, we're hoping that what we come up with will be attractive, that people will want to do it as victim assistance. If it doesn't come to fruition we can't, certainly, mandate it. So, I hear what you're saying, but I still think it's worth trying to come up with a standard form.
MS. FOLEY: Even if it's down to 50 percent of the work the victim has to do, that's 50 percent of the time we've spent.
MS. FRANK: Well, my question gets back to this. If this is a model form and the victim gets it, let's say, from your website and fills it out and then wants to send it to everyone, and then they get from all the retailers that belong to this association or another, that has not cut down on my time, that has not cut down on anything. It's given me an additional burden.
MS. CRANE: I would suggest the way they do it with the college common application that in some central location, possibly our website, there are a list of creditors and retailers who will accept --
MS. FRANK: That would be perfect.
MS. CRANE: That way, you'll only know -- you'll only know -- you'll only bother to do it if two or more institutions on your list would accept it.
MS. FOLEY: That's a great idea.
MR. MONSON: Joanna --
MS. WELCH: It's been our experience that retailers, very many of them, don't have affidavits. They come -- the customers come to us and say, do you have an affidavit we can use for a retailer because they don't have one. So, we have a generic affidavit that says nothing about Chase Bank on it to give to people. So, I think they would love this. I think a lot of the ones I deal with.
MR. MONSON: I somehow hear that the retailers, and in the case of a bank with a credit card, I think, or demand deposit, has a specific interest in their particular problem with that customer or with the victim. At the same time, if I understood it correctly, the three credit reporting agencies have a more omnibus interest and I kind of sense that maybe -- I apologize right up front for both of you -- there's a need for two.
One short form for a retailer and a bank, say a credit card company, and one slightly more comprehensive form that would go omnibus to the three reporting agencies --
MS. CRANE: Steven, I'm sorry to interrupt. This is not contemplated as a vehicle for CRAs. This is only --
MS. FRANK: Right. They asked for their own -- you have to write specific letters that outline specific disputes that you have. So, that's not for a CRA at all.
MR. MONSON: Oh, okay, fine. Then I withdraw --
MS. FRANK: You still have do have that burden.
MR. MONSON: I withdraw on that. I'm sorry.
MS. FRANK: I just want you to understand the process for a victim. They still have to write to the credit reporting agencies and make a very clear and concise letter of the disputes that they have for each of the fraudulent accounts. So, it's a very difficult process. It's an extra burden over here, versus the creditors.
MR. MONSON: Okay, I'm fine. Then I back off of that.
MS. FOLEY: There's still Social Security, IRS, criminal identification -- there's still a whole list of other areas that they are going to deal with separately as well.
MS. CRANE: So, just moving very quickly, I'm on page two of 12. I think probably the full legal name is a --
MS. FOLEY: That's mandatory.
MS. CRANE: That's mandatory. Previous names used at the time of the event and not greater than, I guess five years did you want to say?
MS. FOLEY: Well, we just said that. Previous names at the time of the event. Whereas if I were to read this I'd go, you know, how -- do I have to go back? None of this was pertinent to the event that happened here. So, what you said, keep it pertinent to that specific event.
MS. FRANK: Just say for five years just to give it a year.
MR. GOLLIHER: May I suggest a brief preface that was brought up earlier by another commenter?
MS. CRANE: Um-hum.
MR. GOLLIHER: In essence, a notice to the creditor, this keeps you on notice as required under paragraph so and so of the Fair Credit Reporting Act and what the creditor is required to do from that point. In other words, if I send it to Chase, they don't need to know this. If I send it to ABC National Bank in Muskogee, Oklahoma, I would like them to -- again, two people today testified that the banks need to follow the rules.
MS. CRANE: I guess what we were thinking is that most of the people wouldn't get this from our website, they would be sent it by Muskogee Bank.
MR. GOLLIHER: Right, right.
MS. CRANE: So, I agree with you that if the legal effect is to put the bank on notice, perhaps we need to include it in the document. But by no means do we suggest that a victim mail this off to a bank where they're trying to resolve a dispute without personally contacting them and letting the fraud department know that they're going to send it so that there is that relationship, so the victim knows who it's going to, who it should be addressed to, that there's a fraudulent account.
I mean, all that groundwork has to be laid first. You have to have already closed that account.
MS. FOLEY: And there's usually an investigation number that would go on here somewhere as well.
MS. CRANE: Right. So, this is coming after the fact, not as the first notification to an institution.
MS. FRANK: Joanna, that's a really good point you just made. I think maybe you need to add some little preface to say this is -- it's contemplated that you will send this after you have, number one, called and closed the account, put a fraud alert on the account, gotten the name of the contact person in the fraud department and that you have already said you will be sending them this documentation.
MS. CRANE: Right.
MS. FRANK: So, even though it's assumed by you, I think it may not be assumed. And even if you do have it on your website, which you probably will, then it will be clearer.
MS. CRANE: Okay.
MS. FRANK: The only other thing as a preface that I think would be really helpful is to have a notice of -- kind of like what I was assuming you were saying and that I think would meet some of the privacy concerns of victims is this, is that you say, you know, in filling this out, I want you -- I as the victim have already been victimized and I ask that you keep this confidential and when you are about to discard it that you shred it or discard it in the proper manner and safeguard my information.
I think that the issue we want to bring up is to have a little thing from the victim clarifying how they want it safeguarded.
MS. CRANE: Okay. We tried to get at that a little bit, but I see that we could add more.
MS. FOLEY: Maybe even a notification that it's being released through the court system and the notification.
MS. CRANE: Right.
MS. FRANK: Like, if you're subpoenaed, please contact me first.
MS. FOLEY: So, at least -- because if the judge in my case, once she found out that my imposter had this information, ordered that it be disposed and that she would not be allowed to have it. So, at least I had some recourse. If I had like noticed something, I could have done it ahead of time.
MS. CRANE: Good. So, that's a good idea, notification is released so you have that --
MS. FOLEY: I could go to my DA then and say please.
MS. WELCH: But does that put -- does that put a burden on the DA's office or the prosecutor then?
MS. FOLEY: They have a burden anyway to --
MR. MONSON: Yes, it does. But at the same time, prosecutors have to keep in mind there is -- as we talked yesterday, there are two victims. There are the economic victims and there are the personal victims. The economic victims will, we hope, be eventually recompensed in some way, possibly through restitution or what have you. The personal victims probably never will get back their entire life. I think that's understood.
We, as prosecutors, should not contribute to their misery. So, to the extent that the discovery rules allow, I know that in my state discovery rules do allow that the prosecutor can say, look, the defense asked for X, Y and Z. We believe that this should either be, number one, held by the court, not disclosed or if given, given subject to rules.
MS. FOLEY: They do that for domestic violence.
MR. MONSON: It's probably much the same. Those -- there's already a framework in that context, and it could be easily applied here because it's almost the same.
MS. CRANE: I had understood it would be the bank that was disclosing it to the prosecutor or to the State's Attorney, but simultaneously notify the victim, by the way, I just had to turn this over to this prosecution, so the burden is then on the bank or the creditor not on the court system.
MS. FRANK: Actually, if you had to give notice, the burden would be on the victim to get an attorney to get a protective order. That's what it would be.
MR. MONSON: Um-hum.
MS. FRANK: You just have -- the only burden you would have as Chase is just to notify the victim that you've been subpoenaed and then you have 30 days to respond to it.
MS. WELCH: That's a huge burden, though. I mean, we'll have to talk about that more. That's a huge burden.
MS. FOLEY: There's got to be something, as we said, like domestic violence, and I'm sure they must have policies where they're not disclosing certain pieces of information to a possible perpetrator of domestic violence to protect the victim.
MS. FRANK: They have to give it to the court. They don't have a choice.
MS. FOLEY: To the court, but they don't have to give it to the perpetrator.
MS. CRANE: So, you're saying that their record-keeping and the whole accuracy of the trigger mechanism would be very, very difficult for banks.
MS. FOLEY: Right, right. Every time we're subpoenaed to produce documentation to then have to stop and to call the victim or to notify the victim, yeah.
MR. MONSON: I accept that there is the possibility that in almost every case -- and correct me if I'm wrong -- that if the bank receives a subpoena duces tecum from whatever jurisdiction, it's not returnable immediately, there is a time frame. Perhaps jurisdictions have to be made aware, as in the domestic violence context, that if a subpoena is issued by -- not by the state, because the state will have obligations already, but by anyone else and in this case the defendant, that the defendant has the affirmative obligation to give notice to this identity victim, who will then have an independent right to move to quash the subpoena or seek a protective order.
MS. CRANE: So, that would be --
MR. MONSON: It takes the bank off what you're concerned of, but at the same time the bank can be alerted because you can look at the subpoena and say, whoa, there was not notice here to all the parties, and the bank would be on a firm footing to come into court, it might be there to produce the records, but say, wait a minute there's been non-compliance with the court rules or the statute or what have you.
You may or may not be asserting the rights of the victim, but my point is that safeguards can be built in that --
MS. FRANK: Can I stop you for a second?
MR. MONSON: Sure, Mari.
MS. FRANK: What will happen is is that if the police have to subpoena the records they'll say -- let me just stop for a second. The subpoena comes from a law enforcement agency, they give it to the prosecutor. The prosecutor then is -- the demand comes from defense counsel to the prosecutor to get the documentation.
So, this whole issue has nothing to do with the bank at all now, because if the bank gets subpoenaed by law enforcement -- unless you wanted to, at that point, say to the bank, which I don't think you want the burden, the bank, when you're subpoenaed, you have to tell the victim, then what happens is it's going to be a while before defense counsel is going to get it because the case is just being put together.
That's how it works when I --
MR. MONSON: Well, I understand that, Mari, and I wasn't addressing that aspect. I think that aspect can be addressed through the law enforcement forums fairly well.
MS. FRANK: The defendant is not going to subpoena records because he hasn't been charged yet.
MR. MONSON: No. But there are instances, and I think it will happen, where the defendant, independent of what they get from the prosecutor -- and they do this all the time -- will start seeking discovery through other means. I fight this all the time when they use the subpoena as a substitute, and our position is, follow the damn rules. Sometimes you have to remind the judges of that.
But the point is that here the bank or the credit reporting bureau or the retailer is sort of caught in the middle. They have to honor the subpoena and they don't want to be held in contempt.
But at the same time, this is really no different than the domestic violence and I think that the same types of protections and rules that the courts have crafted can be put in place, and at the same time through the law enforcement forums, the prosecution would be made well aware, these are the same kinds of cases, give them the same kind of protections. You have an obligation to assert that there are privileges, that there are things that shouldn't be given out or given out under protective order.
MS. CRANE: Can I interrupt? We have ten minutes left. The issues you were just talking about are present under the current system right now. So, why don't we put those aside as really not necessarily linked to this, although very important, and just see what we can scratch out. Complete current address I think is fine. We'll be okay with that. Amount of time at that address.
MS. FOLEY: Absolutely necessary.
MS. CRANE: Okay. Single previous address, not all previous addresses.
MS. FOLEY: If it's a certain time.
MS. CRANE: Within the time period that this occurred? Is that --
MS. FOLEY: I mean, I've been at my address for seven years. I don't need anything prior to this.
MS. CRANE: If during -- if different during.
MS. FOLEY: Right.
MS. CRANE: And I guess number six would probably be -- arise only if it was germane to the time.
MS. FOLEY: Right.
MS. CRANE: Both phone numbers?
MS. FOLEY: Yeah. I might even throw e-mail in there, but I know the guy yesterday had a problem with that.
MR. GOLLIHER: He virtually insisted on it.
MS. FOLEY: Okay, that's right because Travelocity.
MR. GOLLIHER: Yes, that's the portal.
MS. CRANE: He was saying that's how we do our fraud investigation. An alternate number. Obviously, this is optional anyway. Date of birth. Do the banks like that to identify people or is this --
MS. WELCH: Well, it depends. If it's our customer who's saying that something has happened, then we already have that information. If it's not, we might like that.
MS. CRANE: And we find for check fraud, I think it's -- at least 50 percent of the check fraud is not your customer. It's someone who's out of the blue, a new account was established in their name.
MS. FOLEY: Can we put the word optional there, and if someone wants that information, they can always contact them.
MS. FRANK: To me, I don't have a problem with it because if your imposter is 20 years younger than you, it's going to show up right away, you want to see that date of birth, I would think, as the creditor.
MS. CRANE: What about Social Security number?
MS. FOLEY: I think it's going to be necessary because there's too many records linked to it.
MS. WELCH: Right. I think everyone would -- how could you know if the Social Security number on your file was good or bad or whatever if you don't know what the real Social Security number is.
MS. FOLEY: The imposter already has it anyway.
MS. CRANE: Okay.
MR. MONSON: Well, you know, the victim is filling this out and also we're talking about that it's in the affidavit or notarized or not. Most states also have a -- essentially we do what's called a certification. As long as you're saying I sign this under penalty of -- you know, that this is truthful and if anything's false here I can be prosecuted and so forth, and there's a boilerplate in every state.
MS. CRANE: Right.
MR. MONSON: I think that the victim is doing this in part in good faith to help clean up the mess that's been created. I don't think we're going to presume the victims are lying because they, by signing it, will subject themselves to further pain and suffering if they're lying. So, to the extent that you may need to get certain information, as long as it's accurate and that we've included some of the confidentiality issues, maybe that can -- that's fine. That mother's maiden name, though, has to come out.
MS. CRANE: Yeah, I've scratched that out. That's gone. This section here, was it too complicated? What we were trying to do was to get them to state their position relative to the fraud, that they didn't authorize it, that they didn't benefit from it. And then it's sort of a Chinese menu. People that I do know did this without my authorization, or people that I don't know did it without my authorization. Is that too complicated?
MS. WELCH: Couldn't 12 and 13 just be merged together? I know on our affidavit, in one sentence we say exactly that, I didn't authorize it and I didn't receive the benefit.
MS. CRANE: That's a good idea.
MS. FRANK: And 15 should be, I don't know much about this at all.
MS. CRANE: So you want it in plain English.
MS. FRANK: Yeah.
MR. MONSON: The more you can do in plain English, the better.
MS. FRANK: Lots of times people don't even know how it happened, how they got the information.
MS. CRANE: I think that -- yeah, that's what we're trying to say.
MS. FOLEY: Have you put this through a readability test at all?
MS. CRANE: No, we haven't. Usually we run it through OCBE, our consumer and business ed people. But we didn't have time.
MS. FOLEY: Okay.
MS. CRANE: So, we will definitely do that.
MS. FOLEY: Because you have a really high readability level on this and I'd bring it down to a sixth grade readability level.
MS. CRANE: Okay.
MS. WELCH: Did we decide to keep 14 and 15?
MS. CRANE: I think that we'll make the readable but it's basically people that I know did this or I don't know who did this or how it happened.
MS. WELCH: Could we put something -- I mean, just to make it so much simpler. If I know who did this, their name and information is below.
MS. FRANK: Well, that's what we were talking about yesterday, if on page 12 you would kind of combine that.
MS. CRANE: Right.
MS. FRANK: If you know, you can give information and put it right there instead of going to another page. Right there.
MS. FOLEY: Fourteen and 19 go together and 15 and 20 go together.
MS. CRANE: Fifteen and 20 go together. What was 20? I forgot.
MS. FRANK: No, 15 and 18.
MS. CRANE: Fifteen and 18, yeah.
MS. FOLEY: No, it doesn't.
MS. CRANE: Sort of it does, sort of it does because 18 says that people I don't know presumably got this information by doing something now is what it is. Our hotline shows that most of the time people don't know. They shouldn't even be bothering to ask it since most people don't know --
MS. FRANK: Well, sometimes they do, because I did find out, for example, that mine got my credit report. I found out later. So, if they do, it's helpful.
MS. FOLEY: The one thing I -- the word checks, bank checks or something like that, because --
MS. CRANE: Right.
MS. FOLEY: There's a lot of victims who have thrown away a check stupidly in the trash and --
MS. CRANE: I got those all three yesterday, indicate with a check, and we would combine those. Werner and Barry both thought it would be advisable to add a question, are you going to prosecute, yes, no.
MR. GOLLIHER: Assist in prosecution.
MR. DUNCAN: That's what some retailers put on their -- they get a formal statement. I am willing to prosecute.
MS. FRANK: First of all, the state prosecutes. It's not --
MR. MONSON: Thank you.
MS. FRANK: I am going to assist in the prosecution. But can I add one thing that I think was important that got brought up yesterday, if somehow could we say something, if someone I know has done it, they are willing to take over this account.
MS. FOLEY: Yes.
MS. FRANK: Because that's what we talked about. Sometimes when a family finds out that it -- let's say a child did -- you weren't here to view this yesterday, were you? A stepchild finds out -- I mean, a father finds out that his stepchild did it. The stepchild is willing to take over the account. So, the creditor should know that.
MS. CRANE: Again, it wouldn't commit the creditor to a particular response, but it would be information for the creditor to have.
MS. WELCH: Well, the creditor should have that when they're talking to the customer still.
MS. FRANK: If they talk to them, because a lot of them don't. They're not all as good as Chase.
MS. CRANE: Yeah. You guys are really a model here. I'm sorry, Ken.
MR. GOLLIHER: I apologize, but I'll take the role of the creditor here. If I know that the son took it, I don't care if he's willing to take over the debt because he's probably not credit worthy. But I think you asking me that question is going to induce you to give you -- give my son up.
MS. FRANK: What do you mean, by I'm willing to assist in prosecution?
MR. GOLLIHER: No. I mean if --
MS. CRANE: That it's a member of my family that --
MR. GOLLIHER: Yeah. If I'm going to say, well, it's my son, he's a member of my family, but he's willing to take it over, if I'm the bank, I don't care.
MS. FOLEY: Well, the banks usually hold the victim responsible anyway.
MS. FRANK: So maybe we shouldn't include it then.
MR. GOLLIHER: Well, what I'm getting to is I'll go after the son. You have --
MS. FOLEY: If you'll go after the son, then I'd like to see it in there.
MR. GOLLIHER: Okay.
MS. FOLEY: Because that takes the burden off the family member.
MS. CRANE: All right. I think what we're -- we're not going to be able to discuss all of these today. So, what we had to do is put it on our website and maybe get feedback. But let's see, should we -- okay, we're going to combine 15 and 19. Twenty, does this help? Does this add something that the victims should be able to give and that the creditors would want to know, how the victim first discovered it, or is this just verbiage that's not needed?
MS. FOLEY: I think it's needed.
MS. FRANK: You know what, it's too much, it's going to go in their cover letter. I think it's too much to do it each time, to send it to them, I really think it's too much.
MS. CRANE: Judy, do you generally collect this?
MS. WELCH: We talk about this in the interview with the customer because we want to know if they knew about it in January and kind of just didn't do anything.
MS. FRANK: But I think for example -- this gets back to -- is it Mal?
MR. DUNCAN: Mallory.
MS. FRANK: Mallory. I think this gets back to what Mallory says. You're going to find out about each account differently, and so, you could say I ordered my credit report and I found it on here. I just think they're going to want specifically. So, I would take it out here and put it in the cover letter.
MS. CRANE: Yeah. This kind of also goes to -- well, anyway, I'll -- the next one, 21. I think we've already decided to reformat this or just take it out completely or just advise people to attach to this a document listing the account that you're disputing and that --
MS. FRANK: Right. That goes in the cover letter. This stuff could be, Joanna, if you get a police report that lists all the fraud, then you can just attach the police report.
MS. CRANE: Right. But we don't want to require them because not everyone gets a police report.
MS. FOLEY: And it's the same -- I mean, it's the same issue. You're still disclosing everything to one --
MS. FRANK: No, because you're not -- when you get a police report, it just lists that, you know, Citibank was a victim, da, da, da, da, da. The only thing I know, when I was victim -- and I don't know if this happened to you -- but I know most of my victims, I tell them -- and it's in my book -- when you send your cover letter, send a copy of your police report because it will clean up faster. Otherwise, my experience with victims is they can't get clean-up without a police report. So, to copy a two or three-page report is worth it.
MS. WELCH: We would want somewhere in here account number and that type of information for the bank or the retailer you're dealing with.
MS. FRANK: Yeah, that should be the cover letter.
MS. WELCH: Right, but it's got to be in this document that they're --
MS. FRANK: If -- okay, okay.
MS. CRANE: Well, then maybe we should have a question 21 saying that -- but see then you couldn't copy it. It has to be an addendum to the document, because if you only want Chase's info to only go back to Chase, then it's on a separate piece of paper.
MS. FRANK: You might say an addendum -- attached is an addendum for the specific financial institution.
MS. FOLEY: Would it help each financial -- do you guys talk between each other if -- because I know when I was given -- when I went to the different banks, I was given either a reference number or an investigation number.
MS. WELCH: Like you get a case number.
MS. FOLEY: Is that so the -- because I've been to the CFCIA meetings, California Financial, they talk to each other. Do you guys -- if you knew the investigator who was working on it for each bank, would you talk to them?
MR. DUNCAN: It depends on how the fraud occurs. Sometimes, for example, you'll find someone who's going around using fraudulent information in a mall, going from store to store to store, in which case basically the loss prevention people will pick up on that and they'll use -- they'll communicate.
MS. FOLEY: So, it's something they'll contact the --
MS. FRANK: You could put attached is my police report and put optional.
MS. CRANE: Yeah, that's here.
MS. FRANK: Or at least say police report number.
MS. CRANE: Actually, if you look here --
MS. FRANK: Yeah, I know it's in the back.
MS. CRANE: It's in the back. Okay. Unfortunately, my boss is giving closing remarks in two minutes. I can't miss it because he's my boss.
MS. FOLEY: Thanks for your patience.
MS. CRANE: Thank you all very much. We'll put this on the website with modifications and then we'll hope to get further feedback from all interested parties.
MS. FRANK: So, let us know when it's going to be up and we can give you feedback.
MS. CRANE: Certainly.
(Whereupon, at 12:45 a.m., the session was concluded.)