Protecting the Rights of Victims of Identity Theft

Transcription

1 Protecting the Rights of Victims of Identity Theft II Congreso Internacional del Derecho de los Mercados Bogotá, Colombia Marzo 2015 The views expressed in this presentation are mine and are not necessarily those of the Commission or any individual Commissioner. Michael David Panzera, Esq. Counsel for International Consumer Protection Office of International Affairs Federal Trade Commission

2 OUTLINE I. Background: Identity Theft Act II. FACTA: Rights for Identity Theft Victims III. FDCPA: Fair Debt Collection Practices Act

3 Section 5 prohibits: Unfair methods of competition FTC General Authority The FTC enforces the FTC Act, which prohibits unfair and deceptive practices. Deceptive practices Material representation or omission that is likely to mislead consumers who are acting reasonably under the circumstances Unfair or deceptive acts or practices Unfair practices substantial injury that is not reasonably avoidable and not outweighed by benefits 3

4 IDENTITY THEFT ACT Identity Theft and Assumption Deterrence Act ("the Identity Theft Act") of 1998 Original law covering identity theft was 18 U.S.C. 1028: "Fraud and related activity in connection with identification documents The Identity Theft Act strengthened and broadened this law by makes it a federal crime to: knowingly transfer or use without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law

5 IDENTITY THEFT ACT Toll-Free Telephone Hotline Counseling by specially trained personnel to resolve credit-related problems and provide information about rights under: Fair Credit Billing Act Truth in Lending Act Fair Debt Collection Practices Act

6 IDENTITY THEFT ACT Identity Theft Data Clearinghouse The FTC oversees a centralized complaint and consumer education service for victims. (1) log the receipt of complaints by victims of identity theft; (2) provide identity theft victims with informational materials; and (3) refer complaints to appropriate entities, including the major national consumer reporting agencies and law enforcement agencies Available to law enforcement agencies nationwide via the FTC's secure law enforcement website, Consumer Sentinel.

7 IDENTITY THEFT ACT Identity Theft Data Clearinghouse The FTC oversees a centralized complaint and consumer education service for victims. (1) log the receipt of complaints by victims of identity theft; (2) provide identity theft victims with informational materials; and (3) refer complaints to appropriate entities, including the major national consumer reporting agencies and law enforcement agencies Available to law enforcement agencies nationwide via the FTC's secure law enforcement website, Consumer Sentinel.

8 FACTA Fair and Accurate Credit Transactions Act of 2003 (FACTA) Contains provisions that deal mainly with the prevention and detection of identity theft and creates new rights for victims of ID theft.

9 Rights for Identity Theft Victims Consumers have the right to: 1. Create an identity theft report. 2. Place a 90-day initial fraud alert on his/her credit report. 3. Place a seven-year extended fraud alert on his/her credit report. 4. Place a credit freeze. 5. Get free copies of his/her credit report.

10 Rights for Identity Theft Victims 6. Have fraudulent information blocked from his/her credit report. 7. Dispute fraudulent or inaccurate information on his/her credit report. 8. Stop a debt collector from contacting consumer 9. Stop creditors and debt collectors from reporting fraudulent accounts. 10. Get copies of documents related to the theft of his/her identity.

11 Rights for Identity Theft Victims 1. Right to create an Identity Theft Report An Identity Theft Report helps consumers deal with credit reporting companies, debt collectors, and businesses that gave the identity thief credit or opened new accounts in consumer s name.

12 Rights for Identity Theft Victims 2. Right to place a Fraud alert FACTA allows consumers who have a good faith suspicion that they have been, or are about to become, a victim of identity theft to place an initial fraud alert on their credit files for at least 90 days. Consumers need only request an alert with one of the nationwide CRAs, which in turn will notify the other two nationwide CRAs.

13 Rights for Identity Theft Victims 3. Right to place an Extended Fraud alert A consumer who has created an Identity Theft Report may request an extended fraud alert, triggering: the reporting agency to disclose this fraud alert in any credit score that it issues for the consumer during a seven-year period Bar on releasing credit report to creditors unless they take steps to verify your identity. exclusion of the consumer from any list distributed to third parties for the purpose of extending credit or offering insurance to that consumer

14 Rights for Identity Theft Victims 4. Right to place a Credit Freeze A consumer who has created an Identity Theft Report may request a credit freeze, which: stops all access to credit report does not affect credit score does not affect ability to engage in transactions (open accounts, apply for jobs, rent an apartment, buy insurance, etc.) may be lifted temporarily or permanently

15 Rights for Identity Theft Victims 5. Right to one free credit report per year Consumers are entitled to one free credit report annually from each of the three credit reporting companies.

16 Rights for Identity Theft Victims 6. Right to block info in credit report Consumers may request that a credit reporting agency block the reporting/transmission of any information in a consumer's file that the consumer identifies as information that originated from an alleged identity theft. The CRA must block the information within four days of receiving: proof a copy of an identity theft report the identification of the information by the consumer, a statement from the consumer that the information is not a result of any transaction in which he participated

17 Rights for Identity Theft Victims 7. Right to dispute errors with CRAs

18 Rights for Identity Theft Victims 8. Right to obtain copies of documents Consumers may obtain copies of documents related to the theft of his/her identity, such as transaction records or applications for new accounts. Consumers may direct company to give docs to a specific law enforcement agency.

19 Rights for Identity Theft Victims 9. Right to Stop Calls and Letters from a Debt Collector Once a consumer writes a letter to a debt collector to stop contacting you about the debt, it cannot contact you again (except to say it won t contact you again, or that it plans to take specific action).

20 Rights for Identity Theft Victims 10. Stop a Debt Collector from Selling or Transferring a Debt After each credit reporting company accepts Identity Theft Report, it must tell the debt collector that the debt might have been caused by identity theft. Then, the debt collector can t sell or transfer the debt or report it to a credit reporting company.

21 FAIR DEBT COLLECTION PRACTICES ACT PURPOSE: to eliminate abusive practices by debt collectors EFFECT: Enforced by FTC in administrative/judicial actions Creates a private right to sue for damages Class actions permissible

22 Right to Reasonable Communication When contacting consumer, debt collector must: Make contact only at a reasonable time Not unusual or inconvenient times Presumptively permissible: 8:00am-9:00PM Contact the relevant authorized party only No contact with employers, relatives, etc. No direct contact to consumer if attorney designated Avoid consumer s workplace if known prohibition Debt collector must cease contact if consumer notifies in writing that he will not pay the debt or wishes to stop communication

23 Right to not be subject to harassment Debt collector may not harass, oppress, or abuse any person in connection with the collection of a debt. For example: Threats or use of violence Obscene or profane language Public shaming practices Advertising sale of unpaid debt Repeated telephone calls to annoy, abuse, harass

24 Right to not be subject to false or misleading representations Debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt False representation of U.S. official authority False representation that collector is an attorney Threatening to take impossible legal action (e.g., that nonpayment of debt will lead to arrest/imprisonment of consumer or the seizure, garnishment, attachment, sale or consumer s property) Misrepresentation of identity of debt-holders or debtcollectors

25 Right to not be subject to unfair or deceptive practices Debt collector may not use unfair or unconscionable means of collection: Depositing post-dated checks earlier than agreed Disabling consumer s property (or threats) Impersonation May not pose as creditor Furnishing deceptive forms

26 Right to notice of debt in writing Debt collector must send in writing: Amount of debt Name of creditor Statement that unless disputed within 30 days debt will be assumed valid In case of dispute: Verification of debt will occur first Collection practices suspended until completion Consumer must receive copy of verification of debt or court order

27 Limits on Financial Losses from Identity Theft Under most state laws, consumers are not liable for any debt incurred on fraudulent new accounts opened in their name and without permission. Liability for unauthorized use of credit card is limited to $50. If consumers report the loss to the credit card company before your credit card is used, they are not responsible for any unauthorized use.

28 Limits on Financial Losses from Identity Theft If an ATM or debit card is lost or stolen, liability for unauthorized transactions depends on how quickly the loss is reported to bank or credit union. within two business days = up to $50. after two business days = up to $500 After 60 calendar days after the bank or credit union sends your statement showing unauthorized transactions = unlimited liability

29 Questions? The views expressed in this presentation are mine and are not necessarily those of the Commission or any individual Commissioner. Michael David Panzera, Esq. Counsel for International Consumer Protection Office of International Affairs Federal Trade Commission