Special to Military.com. This is part one in a series of three articles about identify theft and its effect on security clearance.
It was supposed to be the best year of his life. Stephen Echols of Los Angeles, CA had just married the love of his life. He was comfortably employed as a field service engineer doing maintenance and repairs on the dozens of machines the Transportation Security Agency (TSA) used to screen passengers and baggage at Los Angeles International (LAX) airport. Life was good until a periodic update to his required security clearance cost him that job and left him on the street.
Echols is a man who could tell Webster's Dictionary writers a thing or two about the meaning of the word 'perseverance'. His trail of ID woe is complex enough to confound even expert mapmakers. It began one day in 1999 when he found several police officers with guns drawn standing on his front lawn. He was taken into custody and spent 5 and ½ months in jail before being released.
At that time, Echols was a student finishing up his associate's degree. He was charged with stalking and making terrorist threats and bail was set at $250,000—an amount he couldn't raise. At the time, Echols thought his arrest was a simple case of mistaken identity. The concept of identity theft hadn't entered his mind. Eventually, a judge gave him a formal document called a judicial clearance and told Echols to carry it at all times. This document reads, "Order Not To Arrest Or Jail" and is signed by a Superior Court judge. Translated it means 'this is not the man' wanted.
Then in early 2000, Echols found a note on his front door from a Detective Webb asking him to stop by the precinct.
"He showed me a six pack of photos and asked if I knew any of them. I recognized (one man). I've known him all my life." That was the moment Echols learned that his recent brush with the law wasn't an accidental thing. He was informed that a man he'd known since grade school had stolen his identity.
The man's name was Shaw and he'd lived two doors down the street when both men were in grade school. Both were born in 1963. Shaw was half a year older than Echols. To put it mildly, they were not best friends.
Echols does not remember Shaw fondly. "He used to sick his Doberman Pincher on me, shoot BB's at our house, threw eggs at our house. He is the only human being on this planet that has ever spit in my face."
It's difficult to determine how Shaw obtained enough information to steal his identity but Echols was told by a friend that Shaw had a female acquaintance employed at the Department of Motor Vehicles. He believes Shaw had that woman create a driver's license in Echols' name with Shaw's photo on it.
Judicial clearance letter failed to clear up identity issues
After completing his bachelor's degree, Echols started full-time work in 2004. Armed with that prized judicial clearance letter, the decorated Desert Storm/Desert Shield veteran was hired at LAX to do maintenance and repairs on scanning equipment. He kept carrying that letter. If questioned by police, it was supposed to explain that he was not Shaw who had now skipped out on bail and was again a fugitive.
"I performed maintenance and repair on these seven ton lead lined Explosive Detection Systems (EDS). There were over 60 of these systems at LAX so I was extremely busy. I was doing my part in ensuring the safety and security of each and every passenger that flew out from LAX," he said.
During Echols' years at LAX, the company that originally hired him in 2004 was bought out by Morpho Detection Inc. Morpho employees still work at LAX but Echols isn't one of them.
On New Year's Day in 2007, Echols was on his way to buy a pack of cigarettes when he was stopped in Gardena, CA for speeding. Instead of receiving a simple traffic ticket, Echols was questioned about an outstanding warrant. After showing his letter of clearance and sitting on the curb for hours, he was detained. The police officer decided to ignore the letter.
"More times than not it does work but I was told by a judge that small municipalities--small cities like Gardena--could be overly aggressive," Echols said. Aggressiveness wouldn't be the only problem to arise from this traffic stop but that facet of the problem remained unknown for several years.
Echols spent much of New Year's Day 2007 in jail waiting until his fingerprints informed the department that he was not the man sought in their warrant.
"After four hours, they came back and said 'Yeah, you're right; it's not you,'" he remembered.
As an employee with a security clearance, Echols informed his immediate supervisor of the incident while he waited for fingerprints to clear him. He told his boss that identity theft had again reared its ugly head; the company was already aware of his ID battles. The following week Echols received a Detention Certificate from Gardena PD indicating he had not been arrested in connection with the traffic stop on January 1st. That meant he didn't have to file a formal report with his employer—it was just a detention for questioning with no charges filed.
After that episode, Echols maintained his faith in the Judicial Clearance document despite having it dishonored; he has now carried that paper for 13 years.
A data entry error would haunt him for years
At the time, Echols thought his Detention Certificate marked the end of the matter and it did--for several years. As a field service engineer, Echols continued to pass security checks—until the Transportation Security Agency (TSA) required Morpho workers to complete an online form through the eQip (Electronic Questionnaires for Investigations Processing) system.
"You have to be recertified on your (security) badge every year. From 1999 to 2010 I went through one annually. No problem. I had to cover other airports some times. I had to pass their backgrounds. Still passed those. US Customs service? Had to pass another to get a seal to access certain (Customs) areas. I passed General Electric's checks too." On three occasions, Echols was questioned about his comingled past but a face-to-face meeting cleared up any misunderstandings.
Echols completed his first eQip form in January 2010. It would be his last. Shortly after completing the form, Echols learned that his secret clearance was being suspended. TSA stated he'd lied on his eQip by omitting mention of his 2007 detention, which their research showed as an arrest.
Echols tried to protest that inaccuracy but soon learned someone in the Gardena Police Dept. had incorrectly logged the detention as an arrest in the FBI's NCIC database.
Echols was upset by the news, which caught him totally off guard. "Your average citizen does not have access to the NCIC computer. If I knew they'd marked it as an arrest, I would have disclosed it on eQip," he stated.
The eQip form did not allow any mention of a detention or give any space to explain police encounters. It was a simple yes or no question regarding arrests. In addition to the 2007 encounter with Gardena police, TSA also mentioned the 1999 arrest although it was beyond the 7-year scope of information requested through eQip.
What followed can best be described as an identity theft nightmare. Since losing his $70,000 job in mid-2010, Echols and his wife have run through their savings and 401K balances, lived out of their vehicle and haunted area food banks to eat. His wife has had two miscarriages that the couple was told were stress-induced and she would like to take a medical leave but cannot afford to quit her job. He estimates he's applied for over 3,500 jobs with no luck. He cannot afford Internet access and must depend on a two-hour free session at the library each day to hunt for work. He cannot work in his trained field without that clearance.
"It made me lose faith in the American justice system. The same system that I spent almost 30 years to protect. I have my served this country my entire adult life," he stated with some bitterness.
The road to recovery takes Echols to court again—this time as a plaintiff
Echols struggled with identity theft on his own until his wife stumbled upon a book about how to recover from ID theft during their daily trip to the library. He contacted its author, privacy lawyer Mari Frank of Laguna Niguel, CA for help. Frank, who hosts a weekly radio show on identity and privacy issues, was touched by Echols' extreme case.
"(It's) one of the very worst. Criminal ID theft is always difficult. But we have been stonewalled by TSA from the beginning. We couldn't get a copy of his background check until this year--three years later. He was entitled to get a copy of the report in March 2010. We even made a Freedom of Information Act request but couldn't get (those documents) until a lawsuit was file," Frank said. "This is clearly in violation of state and federal laws and the guidance by the federal government."
Eventually, Frank connected Echols with attorney John L. Fallat of San Raphael, CA. Echols has now filed suit against Morpho Detection, TSA and the US Department of Homeland Security. The case seeks to recover his damages to date, which include $300,000 in lost wages and benefits along with punitive damages. A federal judge has ordered Echols, Morpho and the Feds to discuss a settlement in the next six weeks. A jury trial court date has been set for February 4, 2014.
For Fallat, this core legal issue is, "Whether or not an American citizen has the right to challenge an arm of the federal government when they use background investigations that end up disqualifying them from employment."
For private firms like Morpho Detection, the law is pretty clear. The federal Fair Credit Reporting Act (FCRA) entitles individuals to the copy of any report used in their job eligibility.
Echols' efforts to see that report took years to yield a copy. He's still not sure he's seen it all. It's hard to know who to fight.
"It's the right to challenge your accusers," said Fallat. "If you're a Chevron worker at a refinery, you're subject to FCRA. No if's and's or but's. Our cause of action under the Privacy Act allows an individual to go to up against the Feds and say 'You didn't follow your procedures'. It's really an uncharted area of the law."
Fallat, who recently became an identity theft victim himself, and his firm have spent many unpaid hours on the case which is now pending in US District Court in central California. Fallat had a friend who worked in the security background field so he knew something about the industry when Echols approached him seeking representation.
"This case just shocked my conscience," he said. "This stupid eQip background investigation blew his world to smithereens. It's not right. When he worked for the Air Force he had to go through checks. He worked for LAX for years and had to go through checks."
Fallat is not happy about what he sees as foot dragging by the TSA. "If we didn't have the right to go to a federal judge, they'd just ignore us and smash us like a bug."
He's also not pleased with TSA's move to dredge up the 1999 case and feels the government violated their own stated statute of limitations.
"They're not supposed to use that. It's a total mess," he said and added a word of warning. "This could happen to any of us."
Echols' counsel also has yet to see any evidence that Morpho tried to assist its employee in any way.
The case is about more than money.
"One of our goals in this case is to get the stink off him," Fallat said bluntly. "When this case is done, I want him to have paperwork so that if any of this comes up again, he can show (folks) he didn't start this."
A settlement conference has been mandated by the judge and talks should occur before the end of September. Given the uncharted waters Echols' legal team is in, they don't want a settlement that forces them to keep a lid on the legal issues involved.
"We don't want to keep the settlement secret. We want to get it out there,"
Fallat said in reference to the FCRA aspects of the case. He believes every person who earns a security clearance should have the right to face his accusers and view any reports before a termination decision is made.
Alan Edmunds, an attorney who has specialized in representing clearance holders for three decades, agrees. He told idRADAR News it's common for individuals to wind up defending themselves without the necessary documents in hand. It's like shooting blind.
"You don't get a copy of the background report unless you go to the hearing. You can do a FOIA request and you may not get the documents you want in time but the Department of Defense says, "Too bad, you have to go to the hearing." I think that's a denial of due process but DoD doesn't agree," he stated. Even when the files are provided, they may not be complete, he claimed.
Suing the government an uphill battle
It took filing a lawsuit to get Echols' complete report--years after the normal 30-day timeline to produce had passed. The cover letter from the FBI that arrived with it read, "The deciding official should not deny the license or employment based on the information in the record until the applicant has been afforded a reasonable time to correct or complete the information."
"When we finally got that (FBI letter), that was fascinating. They know that the reports are sketchy," Fallat said.
Echols argues that he was never granted a true opportunity to correct the record. Fallat indicated that Morpho could have added some weight to Echols' effort at correction but failed to do so. Instead, they deferred to the Feds.
On July 30, 2013, US District Judge John F. Walker ruled that TSA and Homeland Security couldn't be excused from the complaint even though they have finally provided the report Echols sought for so long. Walker stated in his order that the Federal defendants were missing the point.
Judge Walker wrote, "There is strong argument that, under the circumstances of this case, TSA's records should have been amended to remove the inaccurate information about the Plaintiff's criminal record."
Security clearance process in need of overhaul
Prompted by Edward Snowden's leak of NSA documents obtained using a Top Secret clearance, Congress recently put the entire security clearance system under a microscope. Those who vilify Snowden and those who praise him as a whistleblower exposing illegal activities agree the clearance process needs some improvements.
Hearings in late June delved deep into the issue of background checks and their accuracy rate. The Inspector General (OIG) for the Office of Personnel Management(OPM) which now handles 90% of all federal background work told a US Senate committee that his office was not receiving the funding normally allotted to audit the OPM's Federal Investigative Services (FIS). Even short of funds, OIG has uncovered many sizeable problems.
"One of the most flagrant criminal violations that we encounter is the falsification of background investigation reports. We refer to these as "fabrication cases." These are situations where the Federal Investigative Services' background investigators, either Federal employees or contractors, report interviews that never occurred, record answers to questions that were never asked, and document records checks that were never conducted," said Patrick E. McFarland.
FIS handles an estimated two million checks each year according to McFarland's testimony. Roughly 20 investigators have been found to do fraudulent work to date and another 40 are being investigated.
For Echols, the Congressional spotlight means little. He still doesn't know which firm actually did his report. Was it one of the companies being charged with shoddy work? For a man who's now out on the street, not knowing is not acceptable.
"We still don't know who the vendor was who compiled the erroneous report with the convictions of the fraudster. Stephen still is out of work over three years later. This is the worst travesty," said Frank. "The thing that bother those of us helping Stephen is how vulnerable thousands of other employees are, particularly employees of the government or government contractors."
idRADAR News contacted Morpho Detection for a comment. Media relations manager Scott Factor response was brief. "Thanks for your inquiry. At this time we are unable to comment on current litigation," he wrote in an email.
TSA's media office also declined to comment on the case while it was before the courts.
Frank said that Echols was holding up as well as can be expected three years into this ordeal but he's feeling disillusioned. She believes he will prevail in the end.
"What he is going through isn't just for him but for millions of others who are victims of a background check system that is faulty and has disastrous consequences for victims of criminal ID theft and victims of mixed files," she said.
Hindsight is always 20/20. While earlier detection might have helped Echols learn of the ID theft sooner, act sooner and perhaps reduce the damages, he trusted the system. He didn't stop to check his credit reports or criminal records to see what might be out there in his name—steps he probably would take today.
"He obtained his judicial clearance, he knew he was innocent and thought that was good enough. It wasn't! People don't have any idea how erroneous court records and arrest records are collected and profiled by data brokers and resold over and over again. Once that information is shared, you have no idea how to proceed," Frank said.
