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The Impostor Rule and Identity Theft in America

Published online by Cambridge University Press:  06 March 2017

Jennifer Trost
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Abstract

Impersonation and then identity theft in America emerged in the legal space between a civil system with a high tolerance for market risk and losses incurred by impostors, and a later-developing criminal system preoccupied with fraud or forgery against the government. Negotiable instruments, generally paper checks, borrowed from seventeenth-century England, enabled a geographically far-flung commercial system of paper-based but impersonal exchanges at a time before widespread availability of centrally-issued currency or regulated banks. By assigning loss rather than catching criminals, the “impostor rule” made and continues to make transactions with negotiable instruments valid even if fraudulent. This large body of commercial law has stood essentially unchanged for three hundred years and has facilitated a system rife with impersonation which criminal and federal laws did not address until the late 20th century. English common law, American legal treatises, court cases, law review articles, and internal debates behind the Uniform Commercial Code tell the story of a legal system at the service of commerce through the unimpeded transfer of paper payments. Combining the fields of legal history and criminal justice with the approaches of emerging research in both identification and paperwork studies, this article explains the ongoing policy problems of identity theft.

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Articles
Information
Law and History Review , Volume 35 , Issue 2 , May 2017 , pp. 433 - 459
Copyright
Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

Funding to support this research came from the University of Wisconsin-La Crosse Faculty Research Grant. The author thanks the History Authors Writing Group and anonymous reviewers who provided valuable feedback.

References

1. State Security Check Cashing, Inc. v. American General Financial Services, 972 A.2d 882, 409 Md. 81 (2009)Google Scholar. The terms “impersonation,” “imposture,” and “imposition” can each have slightly different technical meanings. As my sources do, I use them interchangeably in this article to mean pretending to be someone else (in person and/or in writing) for illicit financial gain by manipulating paper information. Lack of consistency is common in the sources: impostor or imposter, Title III or Article III or Article 3. I spell the word “impostor” unless my source does otherwise.

2. The Secret Service began as the law enforcement arm of the Department of the Treasury in 1865 or thereabouts, originally to combat counterfeiting and protect the national currency. Its responsibility for presidential security began at the end of the nineteenth century. Its role has since developed to protect critical national infrastructure, including the payment and financial systems, and its Financial Crimes Task Forces assist with investigations into the growing problem of income tax return fraud. Mihm, Stephen, A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States (Cambridge, MA: Harvard University Press, 2007), 340–58Google Scholar.

3. State Security v. American General.

4. This simple definition of negotiable instruments will be explained more extensively later in the article.

5. Balleisen, Edward, Navigating Failure: Bankruptcy and Commercial Society in Antebellum America (Chapel Hill: University of North Carolina Press, 2001)Google Scholar; Mann, Bruce, Republic of Debtors: Bankruptcy in the Age of American Independence (Cambridge, MA: Harvard University Press, 2002)Google Scholar; Sandage, Scott, Born Losers: A History of Failure in America (Cambridge, MA: Harvard University Press, 2005)Google Scholar; Larson, John Laurtiz, The Market Revolution in America: Liberty, Ambition, and the Eclipse of the Common Good (New York: Cambridge University Press, 2010);Google Scholar Levy, Jonathan, Freaks of Fortune: The Emerging World of Capitalism and Risk in America (Cambridge, MA: Harvard University Press, 2012)Google Scholar; and Olegario, Rowena, The Engine of Enterprise: Credit in America (Cambridge, MA: Harvard University Press, 2016)Google Scholar.

6. Larson, Market Revolution in America, 141; Levy, Freaks of Fortune, 311; and Mann, Republic of Debtors, 257.

7. Price v. Neal, 97 Eng. Rep. 871 (K.B. 1762) in Rogers, James Steven, The End of Negotiable Instruments: Bringing Payment Systems Law Out of the Past (New York: Oxford University Press, 2012), 116–24Google Scholar. See also Johnson, Herbert Alan, The Law Merchant and Negotiable Instruments in Colonial New York, 1664–1730 (Chicago: Loyola University Press, 1963)Google Scholar; and Rogers, James Steven, The Early History of the Law of Bills and Notes: A Study of the Origins of Anglo-American Commercial Law (New York: Cambridge University Press, 1995)Google Scholar.

8. Elliot v. Smitherman, 19 N.C. 338 (1837) in Hayes, Vilia, “U.C.C. Section 3–405: Of Imposters, Fictitious Payees, and Padded Payrolls,” Fordham Law Review 47 (1979): 1086 Google Scholar; and No author, “Case Comments, Negotiable Instruments: The Impostor Rule,” University of Florida Law Review 129 (1950): 130 Google Scholar.

9. Murray, Daniel, “Check Scams: The Facts Remain the Same, Only the Law Changes,” University of Miami Law Review 49 (1995): 608–9Google Scholar.

10. Anderson, Keith, Durbin, Erik, and Salinger, Michael, “Identity Theft,” Journal of Economic Perspectives 22 (2008): 171–92Google Scholar; Pontell, Henry, “Identity Theft: Bounded Rationality, Research, and Policy,” Criminology & Public Policy 8 (2009): 263–70Google Scholar; McNally, Megan and Newman, Graeme, eds., Perspectives on Identity Theft (Boulder: Lynne Rienner, 2010)Google Scholar; Copes, Heith and Vieraitis, Lynne, Identity Thieves: Motives and Methods (Boston: Northeastern University Press, 2012)Google Scholar; and “Identity Theft, n,” Oxford English Dictionary Online, Oxford University Press, September 2015 http://libweb.uwlax.edu:2487/view/Entry/91004?redirectedFrom=“identity+theft”-eid905879 (accessed on November 1, 2015).

11. Torpey, John, The Invention of the Passport: Surveillance, Citizenship, and the State (New York: Cambridge University Press, 2000)Google Scholar; Cole, Simon, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard University Press, 2001)CrossRefGoogle Scholar; Groebner, Valentin, Who Are You? Identification, Deception and Surveillance in Early Modern Europe (Cambridge, MA: Zone Books, 2007)Google Scholar; Lyon, David, Identifying Citizens: ID Cards as Surveillance (Malden, MA: Polity Press, 2009)Google Scholar; Higgs, Edward, “Fingerprints and Citizenship: The British State and the Identification of Pensioners in the Interwar Period,” History Workshop Journal 69 (2010): 52–67 Google Scholar; and Higgs, Edward, Identifying the English: A History of Personal Identification 1500 to the Present (New York: Continuum, 2011)Google Scholar.

12. Mann, Republic of Debtors, ch. 2; Sandage, Born Losers, ch. 4; and Olegario, Engine of Enterprise, ch. 2.

13. Vismann, Cornelia, Files: Law and Media Technology (Stanford, CA: Stanford University Press, 2008)Google Scholar; Kafka, Ben, The Demon of Writing: Powers and Failures of Paperwork (Cambridge, MA: Zone Books, 2012)Google Scholar; Robertson, Craig, The Passport in America: The History of a Document (New York: Oxford University Press, 2010)Google Scholar; and Gitelman, Lisa, Paper Knowledge: Toward a Media History of Documents (Durham, NC: Duke University Press, 2014)Google Scholar.

14. Vismann, Files, 39.

15. Lauer, Josh, “From Rumor to Written Record: Credit Reporting and the Invention of Financial Identity in Nineteenth Century America” Technology and Culture 49 (2008): 301–24Google Scholar; and Lauer, Josh, “The Good Consumer: Credit Reporting and the Invention of Financial Identity in the United States, 1840–1940,” Enterprise & Society 11 (2010): 686–94Google Scholar.

16. Rogers, End of Negotiable Instruments, 3.

17. Ibid., xviii–xxi.

18. Although it was originally encoded in 1896, the Uniform Law Commission says that the NIL has stood the test of time and its only major revision did not happen until 1990. Uniform Law Commission, “UCC Article 3, Negotiable Instruments (1990) Summary,” Article 3, Negotiable Instruments (1990). http://uniformlaws.org/ActSummary.aspx?title=UCC (accessed on November 1, 2015).

19. Scott, James C., Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998), 25–83 Google Scholar; and Mann, Republic of Debtors, 9.

20. Rogers, End of Negotiable Instruments, 27.

21. Pickering, Danby, The Statutes at Large from the Second to the Eighth Year of Queen Anne (Cambridge: Cambridge University, 1764), 106–8Google Scholar.

22. McGowen, Randall, “From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution,” Past & Present 165 (1999): 115–16CrossRefGoogle Scholar; and Daniel, John W., A Treatise on the Law of Negotiable Instruments, Third Edition (New York: Baker, Voorhis & Co., 1884), viiGoogle Scholar. The many different editions of this treatise show evolving concepts.

23. Olegario, Engine of Enterprise, 8–10, 69–73; and Balleisen, Navigating Failure, 102.

24. Larson, Market Revolution in America, 90–91.

25. Balleisen, Navigating Failure, 19–21; and Mann, Republic of Debtors, 255.

26. Levy, Freaks of Fortune, 14–15, 265.

27. Balleisen, Navigating Failure, 170.

28. Larson, Market Revolution in America, 4–5, 98, 120, 170, 182–84.

29. Rogers, End of Negotiable Instruments, 39–44.

30. Daniel, A Treatise, Third Edition, 4–6.

31. Ogden, James Matlock, The Law of Negotiable Instruments, 2nd ed. (Chicago: Callaghan & Company, 1922), 12 Google Scholar.

32. Daniel, John W., A Treatise on the Law of Negotiable Instruments, Second edition (New York: Baker, Voorhis & Co., 1879), viiGoogle Scholar.

33. Daniel, John W., A Treatise on the Law of Negotiable Instruments, Sixth edition (New York: Baker, Voorhis & Co., 1919), xxGoogle Scholar.

34. Huffcut, Ernest, ed., The Law of Negotiable Instruments: Statutes, Cases and Authorities (New York: Baker, Voorhis & Company, 1898), 18, 30CrossRefGoogle Scholar.

35. Notes on Sullivan v. Lewiston, 96 Am. Dec. 61 (1869).

36. Western Union Telegraph Co. v. Meyer, 61 Ala. 158 (1878).

37. Pacific Express Co. v. Shearer, 160 Ill. 215 (1897).

38. Uniform Law Commission, “Diversity of Thought, Uniformity of Law,” http://uniformlaws.org/Default.aspx (accessed on November 1, 2015).

39. The six included: Uniform Sales Act, Uniform Warehouse Receipts Act, Uniform Stock Transfer Act, Uniform Bills of Lading Act, Uniform Conditional Sales Act, and Uniform Trust Receipts Act, from Braucher, Robert, “The Legislative History of the Uniform Commercial Code,” Columbia Law Review 58 (1958): 799 Google Scholar; Ames, James Barr, “The Negotiable Instruments Law,” Harvard Law Review 14 (1900): 241–57Google Scholar; Brewster, Lyman, “A Defense of the Negotiable Instruments Law,” Yale Law Journal 10 (1901): 84–98 CrossRefGoogle Scholar; Eaton, Amasa, “The Negotiable Instruments Law: Its History and Its Practical Operation,” Michigan Law Review 2 (1904): 260–97Google Scholar; Turner, Roscoe, “Revision of the Negotiable Instruments Law,” Yale Law Journal 38 (1928): 25–56 Google Scholar.

40. National Conference of Commissioners on Uniform State Laws, “Amendments to Uniform Negotiable Instruments Act,” August 1933, 5, Box 61L from Karl N. Llewellyn Papers, Special Collections Research Center, University of Chicago Library (hereafter Box #L).

41. National Conference of Commissioners on Uniform State Laws, “Amendments to Uniform Negotiable Instruments Act,” August 1933, 53, Box 61L.

42. American Law Institute (ALI), “Creation,” https://www.ali.org/about-ali/creation/ (accessed on November 1, 2015); and Braucher, “Legislative History,” 799–801.

43. Dow, Steven, “The Impostor Rule and the Nature of Forgery under the Revised Uniform Commercial Code: A Doctrinal Analysis and Some Suggestions for the Drafting Committee,” American Business Law Journal 39 (2001): 25–56 Google Scholar.

44. Llewellyn, Karl, “Meet Negotiable Instruments,” Columbia Law Review 44 (1944): 300–301 Google Scholar; and Beutel, Frederick, “The Proposed Bank Collection Act and Possibility of Recodification of the Law of Negotiable Instruments,” Tulane Law Review 9 (1935)Google Scholar.

45. “Uniform Commercial Code Title III, Uniform Revised Negotiable Instruments Law Sections 1–69,” June 1945, Box 94L.

46. “Report of the Subcommittee on Article 3,” 1962, Box 57M from Soia Mentschikoff Papers, Special Collections Research Center, University of Chicago Library (hereafter Box #M).

47. ALI meeting minutes, June 6, 1947, Box 99L.

48. ALI meeting minutes, June 6, 1947, Box 99L.

49. “Report of Committee on the Proposed Commercial Code,” ALI/NCCUSL, minutes of the joint editorial board meeting, June 19, 1950, Box 106L.

50. ALI/NCCUSL, “Minutes of the joint editorial board meeting, May 20, 1950, Box 106L.”

51. “Comments” on Article 4 Bank Deposits and Collections, 1955(?), Box 50M.

52. “Meeting Minutes of Enlarged Editorial Board,” 1951, Box 109L.

53. Rogers, End of Negotiable Instruments, ch. 3; and Waite, Melissa, “Check Fraud and the Common Law: At the Intersection of Negligence and the Uniform Commercial Code,” Boston College Law Review 54 (2013): 2205–43Google Scholar.

54. Robertson, Passport in America, 11, 105, 185, 246–47.

55. Financial Crimes Enforcement Network, USA PATRIOT Act 2001 https://www.fincen.gov/statutes_regs/patriot/index.html?r=1&id=326-326 (accessed on November 1, 2015).

56. Public Law 97–398 – December 31, 1982, codified at 18 United States Code §1028.

57. Another related body of law is the common law tort of privacy or the appropriation of identity. Also called the common law misappropriation of likeness, it protects the economic rights to one's own name or likeness, such as in cases of celebrities. In these cases, both parties are known to each other unlike in impostor cases. See Kahn, Jonathan, “What's in a Name? Law's Identity Under the Tort of Appropriation,” Temple Law Review 74 (2001): 263–65Google Scholar; and Kahn, Jonathan, “Enslaving the Image: The Origins of the Tort of Appropriation of Identity Reconsidered,” Legal Theory 2 (1996): 301–24Google Scholar.

58. Committee on the Judiciary, Senate Report 105–274—105th Congress, 2d Session, “The Identity Theft and Assumption Deterrence Act,” July 1998, 4, 6, 7.

59. Public Law 105–318c- October 30, 1998, codified at 18 United States Code §1028; 18 United States Code §1028(a)(7).

60. I am not interested in criminal violations of the United States Code Chapter 43 on False Personation (of public officers) or criminal record identity theft, but other scholars are. See Hurl-Eamon, Jennine, “The Westminster Impostors: Impersonating Law Enforcement in Early Eighteenth-Century London,” Eighteenth-Century Studies 38 (2005): 461–83Google Scholar; and Perl, Michael W., “It's Not Always About the Money: Why the State Identity Theft Laws Fail to Adequately Address Criminal Record Identity Theft,” Journal of Criminal Law and Criminology 94 (2003): 169–208 CrossRefGoogle Scholar.

61. Public Law 108–159, § 111(q)(3), 117 State. 1952, 1954 (2003).

62. Linnhoff, Stefan and Langenderfer, Jeff, “Identity Theft Legislation: The Fair and Accurate Credit Transaction Act of 2003 and the Road Not Taken,” The Journal of Consumer Affairs 38 (2004): 214–16Google Scholar.

63. Federal Trade Commission, “Consumer Sentinel Network Data Book for January-December 2008,” February 2009, 3–5; Federal Trade Commission, “Consumer Sentinel Network Data Book for January–December 2014,” February 2015, 3–5. Individuals are generally not liable for losses or unauthorized charges when they become victims of identity theft or fraud. Nevertheless, the unsuspecting still have to repair their reputations or credit records and stay vigilant.

64. Brian Krebs, “Firms Could Be Forced to Disgorge Profits from Tax Refund Fraud,” Krebs on Security, 2009 http://krebsonsecurity.com/2015/06/firms-could-be-forced-to-disgorge-profits-from-tax-refund-fraud/ (accessed on November 1, 2015).

65. Heith Copes and Lynne Vieraitis, “The Risks, Rewards and Strategies of Stealing Identities,” in McNally and Newman, Perspectives on Identity Theft, 93–96.

66. Rosoff, Stephen, Pontell, Henry, and Tillman, Robert, Profit Without Honor: White-Collar Crime and the Looting of America, 6th ed. (New York: Pearson, 2014)Google Scholar.

67. Larson, Market Revolution in America, 90–91.

68. Maurer, Bill, How Would You Like to Pay?: How Technology is Changing the Future of Money (Durham, NC: Duke University Press, 2015), 6–11 Google Scholar.

69. Association for Financial Professionals, “2015 AFP Payments Fraud and Control Survey,” http://www.afponline.org/fraud/ (accessed on November 1, 2015).

70. Rogers, End of Negotiable Instruments, 122.