943.20 Annotation
There is no requirement under that at least one co-conspirator expressly promise that he or she will pay for fraudulently obtained property. Under sub. (1) (d), a false representation "includes a promise made with intent not to perform if it is part of a false and fraudulent scheme." Because "includes" is not restrictive, other conduct aside from an express promise falls under the umbrella of a "false representation." Providing fictitious business names and stolen personal identifying information to a phone company with the intent of setting up temporary phone numbers constitutes a false representation. State v. Steffes,
2013 WI 53,
347 Wis. 2d 683,
832 N.W.2d 101,
11-0691.
943.20 Annotation
Applied electricity that a telephone company uses to power its network is included within the definition of "property" found in sub. (2) (b). State v. Steffes,
2013 WI 53,
347 Wis. 2d 683,
832 N.W.2d 101,
11-0691.
943.20 Annotation
A landlord who failed to return or account for a security deposit ordinarily could not be prosecuted under this section. 60 Atty. Gen. 1.
943.20 Annotation
State court rulings that unauthorized control was sufficient to support a conviction under sub. (1) (d) were not an unlawful broadening of the offense so as to deprive the defendant of notice and the opportunity to defend. Hawkins v. Mathews,
495 F. Supp. 323 (1980).
943.20 Annotation
Sub. (1) (b) was intended to target those entrusted with the property of another who retain or use that property in a way that does not comport with the owner's wishes. The statute applies only to those who are entrusted with custody or possession or money or property. It does not apply to a breach of contract case over whether a purchaser has met contractual conditions for obtaining a refund. Azamat v. American Express Travel Related Services Company, Inc.
426 F. Supp. 2d 888 (2006).
943.201
943.201
Unauthorized use of an individual's personal identifying information or documents. 943.201(1)(a)
(a) "Personal identification document" means any of the following:
943.201(1)(a)2.
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.
943.201(1)(a)3.
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.
943.201(1)(b)
(b) "Personal identifying information" means any of the following information:
943.201(1)(b)7.
7. An identification number assigned to an individual by his or her employer.
943.201(1)(b)12.
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:
943.201(1)(b)12.b.
b. An individual's electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier.
943.201(1)(b)13.
13. An individual's unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation.
943.201(1)(b)14.
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.
943.201(1)(b)15.
15. Any other information that can be associated with a particular individual through one or more identifiers or other information or circumstances.
943.201(2)
(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:
943.201(2)(a)
(a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.
943.201(2)(c)
(c) To harm the reputation, property, person, or estate of the individual.
943.201(3)
(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.
943.201(4)
(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.
943.201 Annotation
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.
943.201 Annotation
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.
943.201 Annotation
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.
943.201 Annotation
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.
943.203
943.203
Unauthorized use of an entity's identifying information or documents. 943.203(1)(a)
(a) "Entity" means a person other than an individual.
943.203(1)(b)
(b) "Identification document" means any of the following:
943.203(1)(b)2.
2. An entity'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.
943.203(1)(b)3.
3. Any other device that is unique to, assigned to, or belongs to an entity and that is intended to be used to access services, funds, or benefits of any kind to which the entity is entitled.
943.203(1)(c)
(c) "Identifying information" means any of the following information:
943.203(1)(c)6.
6. 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:
943.203(1)(c)6.b.
b. An entity's electronic serial number, mobile identification number, entity identification number, or other telecommunications service, equipment, or instrument identifier.
943.203(1)(c)7.
7. Any other information or data that is unique to, assigned to, or belongs to an entity and that is intended to be used to access services, funds, or benefits of any kind to which the entity is entitled.
943.203(1)(c)8.
8. Any other information that can be associated with a particular entity through one or more identifiers or other information or circumstances.
943.203(2)
(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any identifying information or identification document of an entity without the authorization or consent of the entity and by representing that the person is the entity or is acting with the authorization or consent of the entity is guilty of a Class H felony:
943.203(2)(a)
(a) To obtain credit, money, goods, services, or anything else of value or benefit.
943.203(2)(b)
(b) To harm the reputation or property of the entity.
943.203(3)
(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.
943.203(4)
(4) If an entity reports to a law enforcement agency for the jurisdiction in which the entity is located that identifying information or an identification document belonging to the entity 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 entity which law enforcement agency may have jurisdiction. A copy of a report prepared under this subsection shall be furnished upon request to the entity that made the request, subject to payment of any reasonable fee for the copy.
943.203 History
History: 2003 a. 36,
320.
943.205
943.205
Theft of trade secrets. 943.205(1)
(1) Whoever with intent to deprive or withhold from the owner thereof the control of a trade secret, or with intent to appropriate a trade secret to his or her own use or the use of another not the owner, and without authority of the owner, does any of the following may be penalized as provided in
sub. (3):
943.205(1)(a)
(a) Takes, uses, transfers, conceals, exhibits or retains possession of property of the owner representing a trade secret.
943.205(1)(b)
(b) Makes or causes to be made a copy of property of the owner representing a trade secret.
943.205(1)(c)
(c) Obtains title to property representing a trade secret or a copy of such property by intentionally deceiving the owner with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. "False representation" includes a promise made with intent not to perform if it is a part of a false and fraudulent scheme.
943.205(2)(a)
(a) "Copy" means any facsimile, replica, photograph or other reproduction of any property and any notation, drawing or sketch made of or from any property.
943.205(2)(b)
(b) "Owner" includes a co-owner of the person charged and a partnership of which the person charged is a member, unless the person charged and the victim are husband and wife.
943.205(2)(c)
(c) "Property" includes without limitation because of enumeration any object, material, device, substance, writing, record, recording, drawing, sample, specimen, prototype, model, photograph, micro-organism, blueprint or map, or any copy thereof.
943.205(2)(d)
(d) "Representing" means disclosing, embodying, describing, depicting, containing, constituting, reflecting or recording.
943.205(3)
(3) Anyone who violates this section is guilty of a Class I felony.
943.205(4)
(4) In a prosecution for a violation of this section it shall be no defense that the person charged returned or intended to return the property involved or that the person charged destroyed all copies made.
943.205(5)
(5) This section does not prevent anyone from using skills and knowledge of a general nature gained while employed by the owner of a trade secret.
943.205 Annotation
Pricing policies, cost markups, and the amount of a company's bid for a particular project were not trade secrets. Wisconsin Electric Power Co. v. PSC,
110 Wis. 2d 530,
329 N.W.2d 178 (1983).
943.205 Annotation
21st Century White Collar Crime: Intellectual Property Crimes in the Cyber World. Simon & Jones. Wis. Law. Oct. 2004.
943.206(1)
(1) "Manufacturer" means a person who transfers sounds to a recording.
943.206(2)
(2) "Owner" means the person who owns sounds in or on a recording from which the transferred recorded sounds are directly or indirectly derived.
