Comments:

Title: Executive Director

First Name: Tim

Last Name: Reiniger

Organization Name: National Notary Association

Comment: FACTA Identity Theft Rule, Matter No. R411011

This comment refers to “FACTA Identity Theft Rule, Matter No. R411011” and is in response to the Federal Trade Commission’s request for public comment on rulemaking required under the terms of the recently enacted Fair Credit Transactions Act of 2003 (FACT Act or the Act). In particular, this comment addresses the Commission’s rulemaking that would affect the filing of “identity theft reports” (as discussed in Section II.B of the proposed rules) and the criteria for “appropriate proof of identity” necessary to prove the identity of consumers filing identity theft reports (as discussed in Section II.D of the proposed rules).

The National Notary Association (NNA), a non-regulatory, professional, non-profit organization, develops and disseminates notarial standards and best practices for Notaries Public in the United States.  In addition, the NNA serves as an informational and legislative resource for all fifty state governments as well as the federal government.  The Attachment to this comment, “The Role of Notaries in Deterring and Detecting Fraud and Identity Crimes,” provides additional supporting information.

Response to Question VII B. 3:  Identity Theft Reports and the Need for Notarization

The NNA believes it to be essential that any reporting forms which subject the filer to criminal penalties for falsehood be executed only after in-person administration of an oath by an impartial, professional witness such as a Notary Public.  Instead, to protect against potential misuse of identity theft reports by consumers, the Act provides that the filing of the report be subject to criminal penalties without the presence of a Notary or even a police officer. This is particularly troublesome given that the Act permits impersonal filing of the report by automated means without verifying the identity and intent of the submitter.

Notaries can and should provide an additional safeguard against the automated filing of false identity theft reports. If persons who wished to file an identity theft report were required to have their signature on the report notarized under oath, the incidence of false filings could be greatly reduced, if not eliminated entirely, in many cases. 

As documented in the attachment to this comment, persons requesting notarization must appear personally before a Notary and provide satisfactory evidence of identity such as a driver’s license or passport to the Notary (in lieu of the presentation of a satisfactory identity document, a Notary may vouch for a signer’s identity if the Notary personally knows the signer). In addition, the Notary can attest to the signer’s lack of duress and, thereby, later be able to provide important testimonial evidence to establish intent. 

The application of Notaries would provide a proven and effective method of protecting this important reporting system from abuse. Both consumers and consumer reporting agencies should be able to trust that identity theft reports are accurate and bona fide.

Response to Question VII D. 1:  Appropriate Proof of Identity and the Role of the Notary

Incorporation of notarization identification standards would better clarify and define what constitutes “appropriate proof of identity” under the Act.  Because the criteria for satisfactory evidence of identity is already established by law for Notaries, consumer reporting agencies could be assured that the person filing an identity theft report or attempting to remove a previously filed report had met statutory criteria for the establishment of identity. In addition, the Notary’s journal provides documentary evidence for establishing the identity of an individual should the intent of the signer or the authenticity of the transaction be questioned at a later date.

The NNA believes that a notarization performed by a trusted and commissioned Notary Public would prevent abuses of the identity theft report for purposes other than those intended by the Act. Echoing the Commission’s foresight, a notarization performed by a commissioned Notary Public provides the kind of information that is more than “sufficient to prove that . . . consumers are who truly who they claim to be” (Federal Register, Wednesday, April 28, 69.82, 23373). This greater degree of assurance rests on three principles fundamental to the performance of notarial acts: a) that the signer personally appeared before the Notary, b) the signer acted willingly and with awareness, and c) that the identity of the consumer filing an identity theft report had been positively established by a Notary.

Conclusion

The comments submitted herein provide the framework for a solution that could prevent fraudulent filings of identity theft reports. This solution would require that consumers filing identity theft reports appear before a Notary Public, who may then record the transaction in a journal of notarial acts. Further, notarization does not represent an economic burden or significant inconvenience to consumers or consumer reporting agencies.

We urge the Commission and consumer reporting agencies to consider how Notaries may provide a deterrent to abuses of identity theft reports so that all consumers may use these reports with the full faith and confidence of the consumer reporting agencies relying upon them.

Respectfully submitted by:

Timothy Reiniger, Esq.

Executive Director

National Notary Association

Attachment:  The Role of Notaries in Deterring and Detecting Fraud and Identity Crimes