943.201 Unauthorized use of an individual's personal identifying information or documents.

(1) In this section:

(a) “Personal identification document" means any of the following:

1. A document containing personal identifying information.

2. An individual's card or plate, if it can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds.

3. Any other device that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

(b) “Personal identifying information" means any of the following information:

1. An individual's name.

2. An individual's address.

3. An individual's telephone number.

4. The unique identifying driver number assigned to the individual by the department of transportation under s. 343.17 (3) (a) 4.

5. An individual's social security number.

6. An individual's employer or place of employment.

7. An identification number assigned to an individual by his or her employer.

8. The maiden name of an individual's mother.

9. The identifying number of a depository account, as defined in s. 815.18 (2) (e), of an individual.

10. An individual's taxpayer identification number.

11. An individual's deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a).

12. Any of the following, if it can be used, alone or in conjunction with any access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds:

a. An individual's code or account number.

b. An individual's electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier.

c. Any other means of account access.

13. An individual's unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation.

14. Any other information or data that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

15. Any other information that can be associated with a particular individual through one or more identifiers or other information or circumstances.

(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:

(a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.

(b) To avoid civil or criminal process or penalty.

(c) To harm the reputation, property, person, or estate of the individual.

(3) It is an affirmative defense to a prosecution under this section that the defendant was authorized by law to engage in the conduct that is the subject of the prosecution. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.

(4) If an individual reports to a law enforcement agency for the jurisdiction which is the individual's residence that personal identifying information or a personal identifying document belonging to the individual reasonably appears to be in the possession of another in violation of this section or that another has used or has attempted to use it in violation of this section, the agency shall prepare a report on the alleged violation. If the law enforcement agency concludes that it appears not to have jurisdiction to investigate the violation, it shall inform the individual which law enforcement agency may have jurisdiction. A copy of a report prepared under this subsection shall be furnished upon request to the individual who made the request, subject to payment of any reasonable fee for the copy.

History: 1997 a. 101; 2001 a. 109; 2003 a. 36.

A violation of sub. (2) is a continuing offense. State v. Ramirez, 2001 WI App 158, 246 Wis. 2d 802, 633 N.W.2d 656, 00-2605.

Because bail is statutorily defined as “monetary conditions of release," and can be expressed as cash, a bond, or both, one who misappropriates another's identity and uses it to obtain lower bail in a criminal case has done so to obtain credit or money within the meaning of this section. State v. Peters, 2003 WI 88, 263 Wis. 2d 475, 665 N.W.2d 171, 01-3267.

A violation of this section is a continuing offense that is complete when the defendant performs the last act that, viewed alone, is a crime. An offense continues after fraudulently obtained phone and credit accounts are closed only if the defendant received a “thing of value or benefit" after the accounts are closed. Here, once those accounts were closed, the benefits to the defendant ended. State v. Lis, 2008 WI App 82, 311 Wis. 2d 691, 751 N.W.2d 891, 07-2357.

Although the purpose of harming an individual's reputation is an element of identity theft, the statute does not directly punish for the intent to defame and indirectly punish for disclosure of defamatory information, in violation of the 1st amendment. This section criminalizes the whole act of using someone's identity without permission plus using the identity for one of the enumerated purposes, including harming another's reputation. The statute does not criminalize each of its component parts standing alone. This section neither prohibits the defendant from disseminating information about a public official nor prevents the public from receiving that information. State v. Baron, 2008 WI App 90, 312 Wis. 2d 789, 754 N.W.2d 175, 07-1289.

As applied in this case, sub. (2) (c) is content based and regulates speech because whether the defendant's conduct was prohibited depended entirely upon whether the defendant's speech, i.e., the content of e-mails sent using another individual's identity, was intended to be reputation-harming to that other individual. The statute survives strict scrutiny because the statute is narrowly tailored to apply only when the defendant intentionally uses an individual's personal information to harm that individual's reputation. The statute does not prevent revealing reputation-harming information so long as the method chosen does not entail pretending to be the targeted individual. State v. Baron, 2009 WI 58, 318 Wis. 2d 60, 769 N.W.2d 34, 07-1289.

Use of a stolen credit card at a gas pump constituted a representation that the defendant was the cardholder or that he was authorized to use the card for the purposes of proving a violation of this section. The conduct of presenting certain documents containing an entity's identifying information carries with it the representation of permission to use that entity's information, and no additional overt act or affirmative express representation is required. State v. Mason, 2018 WI App 57, 384 Wis. 2d 111, 918 N.W.2d 78, 17-0620.