Stopping Identity Theft

Each year, millions of consumers are victimized by identity theft—the practice of using the identity of another to obtain credit. After the identity thief defaults, lenders and credit bureaus attribute the default to the impersonated consumer. The article draws on the traditional loss allocation rules of the common law to suggest ways to reduce the incidence of identity theft. Lenders and credit bureaus do not at present have a sufficient incentive to avoid attributing the acts of identity thieves to consumers. The piece argues that consumers should have a claim against creditors and credit bureaus for including the transactions of identity thieves in reports on impersonated consumers. That would give the credit industry—the entity that can avoid the losses at the lowest cost—an incentive to take steps to prevent identity theft. Finally, the article briefly reviews current law and suggests some implications for public policy.