Identity Theft or Defamation?

A recent Wisconsin case illustrates how identity theft can incorporate elements of defamation while remaining a separate and distinct offense.
The case is State v. Baron, 2008 WL 2201778 (Wisconsin Court of Appeals).

The case's docket number is 2007AP1289-CR; you can use it to find the opinion on the Court of Appeals’ website, if you like.

According to the court of appeals, here are the facts that led to criminal charges in the case:

Christopher Baron worked as an Emergency Medical Technician (EMT) for the City of Jefferson. His boss, Mark Fisher, was the director of Jefferson's Emergency Medical Service (EMS) program. The criminal complaint against Baron alleges that he hacked into Fisher's work computer and sent emails he found in Fisher's email account to about ten people. The forwarded emails purported to have come from Fisher.

The forwarded emails were originally sent from Fisher to a female EMT, and suggested that Fisher was having an extramarital affair. The content of the emails consisted primarily of sexual innuendoes between Fisher and the female EMT, as well as attempts to set up meetings to engage in the affair. The emails also indicated that Fisher was using an apartment owned by the EMS Department to conduct the affair. Baron sent the emails to various local and county EMS workers, as well as to Fisher's wife. The day after Baron sent the emails, Fisher committed suicide.

Baron admitted to investigators that he had sent the emails and that he had done so to get Fisher in trouble. He stated that he knew Fisher's password because he had helped Fisher with Fisher's computer. Baron told investigators that he used his personal computer at his home to access Fisher's work computer. Baron `blinded’ the emails so that it would not be possible to determine who had actually sent them. He said that he originally intended to send the emails only to Fisher's wife, but then decided to send them to other people so they could see that Fisher was not `golden.’

State v. Baron, supra.

Baron was charged, among other things, with identity theft under Wisconsin Statutes section 943.201(2)(c). The statute provides as follows:

Whoever . . . intentionally uses . . . any personal identifying information or personal identification document of an individual . . . without the authorization . . . of the individual and by representing that he . . . is the individual. . .: (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; [or] (c) To harm the reputation, property, person or estate of the individual [commits a criminal offense]

Baron moved to dismiss the charge, arguing that it violated his rights under the First Amendment. Baron argued that he was being charged with defamation because he was charged with “intentionally” using Fisher’s “personal identification document” to harm Fisher’s reputation. Based on that interpretation of the charge, Baron then invoked the U.S. Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254 (1964). To understand why he did that, we need to review a couple of things.

First, a motion to dismiss a charge as unconstitutional is a defense attorney’s nuclear weapon, because it the court grants the motion the charges are gone . . . forever. To grant such a motion means that the charges can never be brought against the person (or against anyone based on similar facts) because to do so would violate the Constitution, the First Amendment in this context. So a motion like this really raises the stakes for the prosecution.

The other thing we need to review a bit is defamation. Defamation (which can be civil or criminal) essentially consists of publishing false information about someone and thereby injuring their reputation in the community. In the Sullivan case, the U.S. Supreme Court made it harder to bring a defamation action – civil or criminal – against someone who is a “public official.” In this case, both sides conceded that as the Jefferson EMS director, Fisher was a public official under the Sullivan standard.

In the Sullivan case, the Court held that a public official cannot recover damages in a civil suit for someone’s publishing false information relating to the person’s official conduct unless the official proves that the person published the information with “actual malice,” i.e., knowing that it was false or acting in reckless disregard of whether it was false or not. Because it applies a constitutional principle, the Sullivan Court's holding also applies in criminal cases.

There are at least two reasons why the Court required "actual malice." One is that someone chooses to become a public official and, in so doing, has to know that his brings with it a heightened level of public scrutiny and comment, both good and bad. So, in a sense, you assume the risk of a level of nasty commentary when you decide to take a public position. The other, related reason is freedom of the press. The Court found this step necessary to ensure that public officials couldn’t use frivolous defamation suits to intimidate news media and prevent them from holding the officials’ conduct up to public scrutiny.

Here, Baron argued that “because the `purpose’ element of harming an individual's reputation is an element of identity theft that the State must prove, the statute directly punishes him for his intent to defame and indirectly punishes him for his disclosure of defamatory information, in violation of his First Amendment rights”. State v. Baron, supra. He’s basically saying that he’s being charged, criminally, with defaming a public official under a statute that does not require the state to prove he acted with “actual malice.” If that were true, the charge would be unconstitutional and he would win.

He didn’t win. The court first explained that what he was being charged with was not simply harming Fisher’s reputation – it was something different:

The flaw in Baron's logic is that it focuses on the `purpose’ element viewed in isolation. Instead, what is criminalized by the identity theft statute is the whole act of using someone's identity without their permission . . . for one of the enumerated purposes, including harming another's reputation. The statute does not criminalize each of its component parts standing alone. Wisconsin statutes are replete with provisions that criminalize conduct that may otherwise be constitutionally protected, if that conduct is carried out in an unlawful manner. For example, one has a constitutional right to travel, . . . but not to exceed the speed limit when doing so. One also has a constitutional right to keep and bear arms, . . . but not to use them to commit homicide.

State v. Barron, supra.

The court of appeals then held that applying the identity theft statue to Baron did not “criminalize his constitutionally protected right to defame a public official.” State v. Barron, supra.

In sum, the identity theft statute neither prohibited Baron from disseminating information about Fisher nor prevented the public from receiving that information. Instead, the statute prohibited Baron from purporting to be Fisher when he sent the emails.

State v. Baron.

I think the court is right, and I think it’s an accurate distinction, both factually and legally. If I, in my actual capacity as a blogger or, hypothetically, as a newspaper editor, criticize how a public official has been conducting her official business and in so doing inadvertently include statements that are not true, I have in a literal sense defamed her. I published false information that can damage her reputation. But under Sullivan, I have the right to do that, even inaccurately, as long as I don’t err intentionally. We are willing to tolerate a level of error (but not malice) in order to ensure freedom of the press, and the advantages it brings.

And the “harm” my carelessness causes will be mitigated by two circumstances: One is, as I noted above, that she is a public official (I’ve not defamed her personal character), and has opened herself up to a level of criticism, accurate or erroneous, about how she conducts herself in that office. The other circumstance is that I am criticizing her in my own capacity – using my own identity – so those who read what I write can factor that in, take it with a larger or smaller grain of salt, depending on how they regard me.

What we have here, however, is something I’ve written about before: imposture, using someone’s “self” to damage or even destroy them. That cannot fall within the Sullivan standard because it's not a scenario that even remotely resembles what the press does.

Those who read what the imposter writes assume it was written by the person who is, in effect, being framed; that means they can't apply the “regard for the author” filter I noted above. If those who read what the imposter write believe it was written by the person being framed, they will believe what it says is true, and revise their opinion of that person accordingly (downward, maybe way, way downward). It will be extraordinarily difficult, if not impossible, for the person who was framed to un-do what was done to him or her.

What we have, in consequence, is a deeper, far more destructive “harm” than the one inflicted by defamation . . . essentially, the mutilation or eradication of the “self.”