AB288: Bill Text

LRB-1585/1

MGD:kmg:rs

2003 - 2004 LEGISLATURE

2003 Assembly BILL 288

April 23, 2003 - Introduced by Representatives Gundrum, Staskunas, Schneider, Musser, M. Lehman, Krawczyk, Suder, Olsen, Albers, Seratti, Pettis, Hahn, Freese, McCormick, Ott, Hines, Ladwig, Hundertmark, Gielow, Gottlieb, Vrakas, Nischke, Plouff, Rhoades, Van Roy, Bies and Gunderson, cosponsored by Senators Darling, Erpenbach, Lazich, Carpenter, Stepp, Hansen and Roessler. Referred to Committee on Judiciary.

AB288,1,11 An Act to renumber and amend 343.237 (1) (a), 943.201 (1) (a) and 943.201 (2); to amend 343.237 (3) (intro.), 343.237 (3) (b), 343.237 (3) (c) (intro.), 343.237 (4) (intro.), 343.237 (4) (a), 343.237 (4) (b), 895.80 (1), 939.03 (1) (intro.) and (a) to (c), 943.201 (title), 946.82 (4), 970.03 (11) and 970.03 (13); and to create 196.23, 343.237 (1) (ag), 343.237 (3) (e), 939.03 (1) (e), 939.32 (1) (f), 943.201 (1) (a) 1., 943.201 (1) (a) 2., 943.201 (1) (a) 3., 943.201 (1) (b) 10. to 15., 943.201 (2) (a), (b) and (c), 943.201 (3) and (4), 943.203, 946.79, 971.19 (11), 971.366 and 971.367 of the statutes; relating to: identity theft, unlawful use of an entity's identification documents or identifying information, false statements to financial institutions, and access by law enforcement agencies to driver's license and state identification card photographs and providing penalties.

Analysis by the Legislative Reference Bureau

Identity theft

Current law prohibits identity theft -- the unauthorized use of a personal identification document or personal identifying information of an individual (the victim) to obtain credit, money, goods, services, or anything else of value. To convict a person of this offense, the state must show that the defendant falsely represented that he or she was the victim or was acting with the authorization or consent of the victim (the deception element). Under current law, "personal identification document" is defined to mean a birth certificate or a financial transaction card (which itself is defined to include a credit or debit card, a check-cashing card, and an automated teller machine card). Personal identifying information covered by the identity theft prohibition includes an individual's name, address, telephone number, driver's license number, social security number, and checking or savings account number; the name of an individual's employer; and the maiden name of an individual's mother. A person who commits identity theft may be fined not more than $10,000 or sentenced to a term of imprisonment (consisting of confinement in state prison followed by a term of extended supervision) of not more than six years, or both.

This bill makes a number of changes related to the crime of identity theft. First, the bill revises the definition of "personal identification document" so that it covers any document containing personal identifying information; an individual's card or plate, if it can be used to obtain anything of value or benefit or to initiate a transfer of funds; and any other device that is unique to, assigned to, or belongs to an individual and that permits the individual to access services, funds, or benefits. Second, the bill expands the definition of "personal identifying information" so that it covers: 1) an individual's DNA profile; 2) an individual's code, account number, identification number, or any other means of account access that can be used to obtain anything of value or benefit or to initiate a transfer of funds; 3) biometric data (such as a fingerprint, a voice print, or a retina or iris image); 4) any other information or data that is unique to, assigned to, or belongs to an individual and that permits the individual to access services, funds, or benefits; and 5) any other information that can be associated with a particular individual through one or more identifiers or other information or circumstances. Third, the bill specifies that the prohibition on identity theft applies to a personal identification document or personal identifying information relating to a deceased individual.

Fourth, the bill expands the scope of the prohibition to cover the unauthorized use of an individual's personal identification document or personal identifying information to harm the reputation, property, or person of the individual; to harm the individual's estate if he or she is deceased; to avoid delivery of a summons, subpoena, or similar court paper; or to avoid a penalty imposed by a court. The bill also prohibits a person from possessing a personal identification document or personal identifying information with intent to use it for one of those purposes or to obtain something of value. Fifth, the bill specifies that the state may prove the deception element by proving that a defendant falsely represented that the personal identification document or personal identifying information was his or her own.

Unauthorized use of an entity's identifying documents or information

The bill creates a new crime, prohibiting the unauthorized use of identifying documents or information relating to a corporation, partnership, association, government, or government agency (an entity). The elements of and the maximum penalty for this offense are essentially the same as those for identity theft, with two exceptions. First, information that relates to an individual but not to an entity (such as a driver's license number, a social security number, or a DNA profile) is not covered by the term "identifying information" for the purposes of this new crime. Second, the prohibition relating to entities does not apply to conduct undertaken for the sole purpose of avoiding delivery of a court document or avoiding a penalty imposed by a court. The bill also permits an entity that is the victim of this offense to bring a civil action against the person committing it in the same way that current law allows victims of identity theft to bring such an action.

Jurisdiction, venue, and procedure for identity theft and unauthorized use of entity-identifying documents or information

Under current law, a person may be prosecuted and punished for a crime under Wisconsin law if, among other things: 1) the person commits a crime and any elements of the crime occur in this state; or 2) while out of this state, the person does an act with intent that it cause, within the state, a consequence set forth in a law defining a crime. This bill specifies that a person may be prosecuted and punished for identity theft if the victim is a Wisconsin resident and for unauthorized use of an entity's identifying documents or information if the entity is located in Wisconsin. The bill also specifies that the case may be brought in the county in which the victim resides, if the victim is an individual, or is located, if the victim is an entity, or in any other county in which the case may otherwise be brought under current law. In addition, the bill permits more frequent use of hearsay and telephonic or televised testimony at preliminary hearings in such cases.

Utility service for victims of identity theft

The bill allows an individual who is a victim of identity theft to obtain service from a public utility if the individual is unable to obtain that service solely because of the identity theft. If the individual furnishes the public utility with an affidavit and law enforcement agency report regarding the identity theft, and if the individual otherwise qualifies for the service, the public utility must provide the service, unless the public utility contests the accuracy of the affidavit or report by filing a petition with the Public Service Commission (PSC). In such a case, the PSC must investigate the petition and may hold a hearing on the matter. Unless the PSC determines that the identity theft did not occur, the public utility must provide the service.

False statements to financial institutions

Current law prohibits making false statements for the purpose of obtaining a financial transaction card. A person who violates that prohibition may be fined not more than $10,000 or sentenced to the county jail for not more than nine months or both. This bill prohibits certain deceptive activities undertaken in connection with a transaction with a financial institution. The prohibited activities include: 1) falsifying or concealing an individual's identity; 2) making a false statement regarding an individual's identity; 3) making or using a writing that contains false information regarding an individual's identity; or 4) using a false personal identification document or false personal identifying information. A person who violates this prohibition may be fined not more than $10,000 or sentenced to a term of imprisonment of up to six years or both.

Law enforcement agency access to driver's license photographs

With limited exceptions, current law requires the Department of Transportation (DOT) to take a photograph of all applicants for a driver's license or state identification card. DOT may keep copies of the photographs for its own use but generally must keep the photographs confidential. DOT, however, may release a photograph to the individual whose photograph was taken. In addition, DOT may release a copy of a photograph taken on or after September 1, 1997, to a Wisconsin law enforcement agency if the agency submits a written request specifying the name of the person whose photograph is requested and stating that the photograph is requested for the purpose of investigating unlawful activity, looking for a missing person, or identifying an accident victim or a deceased person. DOT may also provide a copy of such a photograph to a law enforcement agency of a physically adjacent state if the agency makes a written request in the same manner as a Wisconsin law enforcement agency and if the physically adjacent state provides Wisconsin law enforcement agencies with access to photographs taken for that state's driver's licenses and state identification cards. A law enforcement agency that receives a copy of a photograph from DOT must keep it confidential.

This bill allows DOT to release a copy of a photograph to any state or federal law enforcement agency if the law enforcement agency makes a written request in the same manner as a Wisconsin law enforcement agency. The same restrictions regarding the use and possession of a released photograph that apply to Wisconsin law enforcement agencies also apply to the other state's law enforcement agency or the federal law enforcement agency requesting the photograph from DOT.

Additional information

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB288, s. 1 Section 1. 196.23 of the statutes is created to read:

AB288,5,2 196.23 Utility service for victims of misappropriated identifying information. (1) If an individual uses personal identifying information of another individual, without the authorization or consent of the other individual, to apply for and receive service from a public utility and, as a result, the individual whose personal identifying information was used without authorization or consent is unable to obtain service from the public utility, the utility shall provide service to that individual if all of the following apply:

AB288,5,6 (a) The individual furnishes the public utility an affidavit indicating that to the best of the individual's knowledge his or her personal identifying information was used by another individual, without the authorization or consent of the affiant, to obtain the utility service.

AB288,5,10 (b) The individual furnishes the public utility a copy of a law enforcement agency report, based on the individual's report to the law enforcement agency of the use by another individual of his or her personal identifying information without authorization or consent to obtain utility service.

AB288,5,11 (c) The individual otherwise qualifies to receive the service from the utility.

AB288,5,17 (2) A public utility may contest the accuracy of an affidavit or report furnished by an individual under sub. (1) (a) or (b) by petitioning for a summary investigation under s. 196.28 (1). If a petition is filed, the commission shall conduct a summary investigation. If a hearing is held under s. 196.28 (2) and the commission determines that the conditions of sub. (1) (intro.) have not been met, the public utility is not required to provide utility service under this section to the individual.

AB288, s. 2 Section 2. 343.237 (1) (a) of the statutes is renumbered 343.237 (1) (ar) and amended to read:

AB288,6,2 343.237 (1) (ar) "Law enforcement agency of a physically adjacent another state" has the meaning given in s. 175.46 (1) (b) means a governmental unit of one or more persons employed by a state other than this state or by a political subdivision of a state other than this state for the purpose of preventing and detecting crime and enforcing laws or ordinances of that state or a political subdivision of that state, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.

AB288, s. 3 Section 3. 343.237 (1) (ag) of the statutes is created to read:

AB288,6,8 343.237 (1) (ag) "Federal law enforcement agency" means a governmental unit of one or more persons employed by the federal government for the purpose of preventing and detecting crime and enforcing federal laws, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.

AB288, s. 4 Section 4. 343.237 (3) (intro.) of the statutes is amended to read:

AB288,6,14 343.237 (3) (intro.) The department shall provide a Wisconsin law enforcement agency or a federal law enforcement agency with a copy of a photograph taken on or after September 1, 1997, of an applicant under s. 343.14 (3) or 343.50 (4) if the department receives a written request on the Wisconsin law enforcement agency's letterhead that contains all of the following:

AB288, s. 5 Section 5. 343.237 (3) (b) of the statutes is amended to read:

AB288,6,17 343.237 (3) (b) The name of the person making the request and the Wisconsin law enforcement agency that employs the requester.

AB288, s. 6 Section 6. 343.237 (3) (c) (intro.) of the statutes is amended to read:

AB288,6,21 343.237 (3) (c) (intro.) A statement signed by a division commander or higher authority within the Wisconsin law enforcement agency that the photograph is requested for any of the following purposes:

AB288, s. 7 Section 7. 343.237 (3) (e) of the statutes is created to read:

AB288,6,24 343.237 (3) (e) If the requester is a federal law enforcement agency, a statement that the agency agrees to comply with all of the requirements under this section.

AB288, s. 8 Section 8. 343.237 (4) (intro.) of the statutes is amended to read:

AB288,7,4 343.237 (4) (intro.) If a law enforcement agency of a physically adjacent another state makes a request meeting all the requirements specified for a request by a Wisconsin law enforcement agency or a federal law enforcement agency under sub. (3), the department shall comply with the request if all of the following apply:

AB288, s. 9 Section 9. 343.237 (4) (a) of the statutes is amended to read:

AB288,7,7 343.237 (4) (a) The law enforcement agency of the physically adjacent other state agrees to comply with all of the requirements under this section.

AB288, s. 10 Section 10. 343.237 (4) (b) of the statutes is amended to read: