March 9, 2003 — Malcolm Byrd was home with his two children on a Saturday night when a knock came at the door. Three Rock County, Wis., sheriff’s officers were there with a warrant for Byrd’s arrest. Cocaine possession, with intent to distribute, it said. Byrd tried to tell them that they had the wrong man, that it was a case of mistaken identity, that he was a victim of identity theft. But they wouldn’t listen. Instead they put him in handcuffs and drove him away. Again.
It was nothing new for Byrd, who has spent much of the past five years trying — unsuccessfully — to talk skeptical police officers out of arresting him. But this time, it was worse. Two days later, he was still in jail.
This is the worst-case scenario for identity theft victims. Losing your clean credit history is one thing; losing your freedom is another. And victims of America’s fastest-growing crime are discovering they often have much more to worry about than the hundreds of hours of paperwork necessary to clean up the financial mess associated with ID theft. Sometimes, they have to worry about ending up in jail — again and again.
“This is the ultimate humiliation, the ultimate nightmare if you ask me,” said Jim Doyle, president of Internet Crimes Inc., and co-founder of the New York City Police Department’s Computer Investigation and Technology Unit. “And it falls on the victim to clear up the criminal record.”
‘Alias becomes a disease'
There’s nothing new about criminals using aliases to evade the law — criminals often try to give their buddy’s name, address, and date of birth to dupe police. But the explosion of identity theft, and the ready availability of stolen digital dossiers on innocent victims, makes it just as easy for a criminal to give a stranger’s personal data during an arrest. Once police book a suspect under a fake name, that mistake can plague a victim for life.
“The alias becomes a disease to the true owner of that character,” said Sgt. Bob Berardi, head of the Identity Theft task force in Los Angeles.
The problem is compounded by the increasing sophistication of law enforcement officials, who now regularly tap nationwide databases like the FBI’s National Crime Information Center to search for outstanding warrants. Getting names off those lists can be a daunting task.
“Officials of criminal records (databases) are — for good reason — reluctant to remove information once it’s been placed in the database,” said Beth Givens, executive director of the Identity Theft Clearing House. “It’s very difficult to clear your record if you are a victim of criminal ID theft.”
His word against a database
Malcolm Byrd is living proof of that.
In Byrd’s case, his word has never been enough. The situation has left the Janesville, Wis., man contemplating a name change. With his impostor still at large, still committing crimes and still using his name, Byrd fears another arrest.
“I don’t feel safe now. When we drive I feel uncomfortable,” Byrd said. “It’s affected our lives enormously.”
Tom Schroeder, a lawyer for the county where Byrd lives, confirmed many of the details of Byrd’s repeated run-ins with the law.
“Mr. Byrd is worried that if he is in Milwaukee County and gets stopped for some reason and the officer punches it into a computer, he may still come up,” Schroeder said. “And I don’t blame him.”
Efforts to eradicate Byrd’s criminal record at the state and federal level haven’t succeeded, Schroeder said. “I left a voice mail on Mr. Byrd’s phone indicating we’d be happy to help him in changing his name and his Social Security number.”
How it began
Byrd’s nightmare began in 1998, he said. A man arrested on drug charges that year identified himself to local officials as Malcolm Byrd.
Thanks to an article in the local Janesville Gazette, the real Malcolm Byrd found out about the identity theft, and headed to the police to correct the error. The paper ran a correction, too. But that was hardly the end of the ordeal.
Four months later, when he was pulled over for speeding, Byrd found himself face down on the pavement, handcuffed. Police records still showed that he was wanted for drug dealing.
The matter was cleared up when officials compared a photograph of the suspect to Byrd, but not before he had lost half a day’s wages sitting at the police station. Soon after, Byrd was fired from his part-time job as a nursing assistant because, he said, he was accused of lying about his criminal record.
Months later, when he was laid off from his full-time job, he was denied unemployment benefits because of his criminal record — just as his wife Carla was about to give birth to their first child, Byrd said. The benefits were reinstated, but at about the same time, he said, he received notice from the Department of Motor Vehicles that his license had been suspended for failure to pay traffic fines. In each case, he blames transgressions committed by the same man, who continues to commit crimes and give police Byrd’s name.
A year later, while surfing the Internet, Byrd discovered his impostor had been arrested again, this time in a neighboring county. To clear his name, he visited the county district attorney’s office and submitted his fingerprints. In exchange, Byrd received court documents proving his innocence. But that didn’t stop him from losing his license a second time in 2000, he said.
After that, life seemed back to normal until April of last year, when Byrd was pulled over again. Once again, he found himself in handcuffs in the back of a squad car, losing half a day’s pay until officers cleared up the confusion.
But that was nothing compared to the most recent arrest, which took place over the Martin Luther King Jr. Day holiday weekend.
Byrd had lent his car to his niece, who was pulled over by police that Saturday night. “Do you know where Malcolm is?” they asked her.
Minutes later, three deputies were at Byrd’s home, armed with warrants from three counties. Before they led him away in handcuffs, they threatened to call child protective services so his 2-and 4-year-old children wouldn’t be left alone. Byrd’s mother-in-law arrived just in time.
Byrd’s wife Carla ran to the sheriff’s department around midnight that night with the court papers clearing her husband’s name. But that didn’t help — the warrants were dated after Byrd’s declaration of innocence.
“They said there was nothing they could do,” Carla said. Byrd was cleared on the Rock County, Wis., warrants soon after, but the sheriff’s office wouldn’t release him until the other two counties gave their permission. Since it was a holiday weekend, Byrd ended up spending two days in jail. He was released just prior to a court hearing the following Monday afternoon.
How common is it?
Byrd’s tale is extreme, but hardly unique. Every privacy expert and law enforcement official interviewed for this story offered horror stories. From victims who had to fly across the country to appear in court and clear their name, to one man who couldn’t get work because of his criminal record and ended up homeless.
Most law enforcement officers say this type of criminal identity theft is rare. But the few reliable identity theft statistics suggest it may be more common than they think. The rate of identity theft crimes doubles every year, according to the Federal Trade Commission. And in a survey conducted by the Identity Theft Clearing House in 2000, 12 percent of victims “found that they must deal with wrongful criminal records.” It was a small survey, but it gives some idea of how pervasive the problem is.
“I think it is more common now because identity theft is a bigger problem,” said Michael Groch, deputy district attorney of San Diego County’s CATCH High Tech Crimes task force. “It’s common enough that we have a whole procedure set up for it ... We call them ‘identity hearings.’ ”
California also has created a special identity theft registry to address the problem, a victims’ database that can be used to prevent a false arrest. f a victim is threatened with arrest by a police officer, the victim gives the officer a toll-free telephone number to call, and a PIN code. The officer then hears a message explaining that this person is an identity theft victim.
How does it happen?
It might seem elemental that arresting officers carefully confirm the identity of anyone they arrest, but that’s not as easy as it sounds. Often, for lesser crimes, law enforcement officials simply take the criminal’s word — particularly for “instant-release” violations like traffic offenses.
“If the suspect gives ... a name and date of birth, and if that information that checks out, if the officer doesn’t have any reason to disbelieve the person a lot of times that is going to be the end of it,” Groch said. “It’s different than if they make up a name.”
But even for more serious offenses, like drug possession, police officers often won’t do much to verify an identity, particularly if the suspect is an identity thief who has managed to obtain an official, state-issued driver’s license.
“You may be brought in or fingerprinted, and photographed, even appear before a magistrate on a TV monitor. And out the door you go. No cross-checking is done,” said Rob Douglas, CEO of American Privacy Consultants Inc. and a former Washington prosecutor. “When people are arrested it’s rare (that police officials) will cross check with the (national crime database) because they already have you on a crime. Often times, the first time a thorough background will be done is at the time of sentencing.”
So when identity thieves are released on bail, and never show up for their court hearings, a warrant is issued for the victim — and the thief has pretty much beaten the system.
Beating technology with technology
The difficulty of beating back bad data is at the core of the problem, and there are some proposed technological solutions.
Instant fingerprint identification networks would cut down on misidentifications, for example. Some locales have tested computers that beam each suspect’s photograph along with warrant information to the arresting officer at the scene; that would prevent some wrongful arrests. But both solutions have civil liberty implications, and both are costly.
“I don’t think there is a great solution that is not going to invade people’s privacy and not going to cost a fortune,” Groch said. “When someone says, ‘It’s not me,’ police have to be more sensitive and do a bit more checking. Cops have to follow their own common sense and need to take a little extra time.”
That’s cold comfort to Malcolm Byrd’s wife. She said her husband is probably safe for now, given the publicity he received from the Janesville Gazette and a local radio station.
“But what about six months from now, when everyone forgets, or if there’s a new sheriff or a new district attorney? We don’t want to have to change his name. How do we explain that to our boys?” she said.
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