Advertising Case Summary

Statement of Facts
Friends since college, Mr. Slater and Mr. Morris are top salespersons at a car dealership; both were recently in competition for a promotion to Assistant Sales Manager along with a third top salesperson, Kelly Kapowski. On Monday August 25, sales manager Brett Belding informed Mr. Slater that his interview was cancelled citing that Mr. Slater was not “manager material,” and referenced Mr. Slater’s behavior via Facebook as irresponsible.
Mr. Slater often used Facebook for marketing his car sales but never connected with Mr. Belding. Mr. Morris and Mr. Slater often logged into each other’s Facebook accounts to play pranks on each other. When Mr. Slater confronted Mr. Morris on the issue of a “friend request” sent to Mr. Belding, Mr. Morris admitted to sending the request the previous Saturday

from Mr. Slater’s account. Mr. Slater recalls seeing Mr. Morris on his account as the pair did “all the time” and thought nothing of it. However, Mr. Slater believes the “friend request” sent on his behalf by Mr. Morris caused him damage by losing the opportunity for a promotion and pay raise.

Discussion
In Wisconsin, the crime of identity theft must satisfy four elements. The elements are: (I) Intentional Use of Personal Identifying Information, (II) Use of Information to Obtain Benefit or Cause Harm, (III) Use of Information Without Authorization or Consent, and (IV) Intentional Representation that He/She is the Other Person. WIS. STAT. § 943.201(2)(2015).
I. Intentional Use of Personal Identifying Information
Zach Morris’s act of using Alex Slater’s Facebook page almost certainly satisfies the first element of Wisconsin’s identity theft statute as defined by WIS. STAT. § 943.201. The first element required for identity theft is defined as such a person “intentionally uses” information that is considered “personal identifying information.” Id. (2). Moreover, “personal identifying information” is considered “an individual's code or account number” or “any other means of account access” that can be “used … to obtain money, goods, services, or any other thing of value or benefit.” WIS. STAT. § 943.201(1). Because a person’s Facebook access information can be used as a “means of account access”, under the Wisconsin definition, Facebook access information likely qualifies as “personal identifying information.” On the matter of use, in State v. Ramirez, the court held that an illegal alien using a social security number to hold employment satisfied the intentional use element. State v. Ramirez 246 Wis.2d 802. Moreover, a social security number constitutes “personal identifying information” as defined by WIS. STAT. § 943.201(1).
Similarly, Mr. Slater explained the pair uses each other’s Facebook access information “all the time.” Slater also confirms that Morris admitted, when confronted, to intentionally using Slater’s Facebook access information to send the “friend request” to their boss. In all, Morris both possessed Slater’s personal identifying information (in the form of Facebook access information) for several years leading up to the situation at hand and did intentionally use this personal identifying information to access Slater’s Facebook account and send a friend request to Slater and Morris’s boss.
II. Use of Information to Obtain Benefit or Harm the Victim
The applicable portion of the second element of identity theft has two subelements that potentially apply to Mr. Slater’s claim: (a) use of information to obtain a benefit and (2) use to harm the victim. WIS. STAT. § 943.201 (b).
A. To Obtain a Benefit
Mr. Slater’s case most likely meets the first subelement of the statute, the use “to obtain … employment, or … benefit.” WIS. STAT. § 943.201 (2) (a). Although the court has not ruled explicitly on the “To Obtain a Benefit” subelement, the court has ruled that the word “harm” (in subelement (B), discussed further below) refers to any “intent to harm” that “may be inferred from conduct.” State v. Peck, 315 Wis.2d 769 ¶ 12-13. The court ruled that a man who subscribed to adult-themed magazines on behalf of his wife did possess intent to harm as a jury “reasonably could have inferred.” State v. Peck, 315 Wis.2d 769. Because these two subelements fall under one element, the court’s opinion on one should readily apply to the other. Therefore, use of the word “benefit” can be inferred to mean “intent to benefit.” Although Mr. Morris has not benefitted in the form of a new position, the claim most likely meets the criteria on this subelement on the basis that Mr. Morris’s actions involved an intent to benefit that “reasonably could have been inferred” due to Mr. Slater’s dismissal from the potential promotion. State v. Peck, 315 Wis.2d 769
B. To Harm the Victim
Mr.

Slater’s case likely satisfies the other subelement of use to “harm the reputation, property, person, or estate of the individual.” WIS. STAT. § 943.201 (2) (c). As discussed in the section on subelement (A), the court has ruled that the word “harm” here refers to the “intent to harm” that “may be inferred from conduct.” State v. Peck, 315 Wis.2d 769 ¶ 12-13. Mr. Morris’s use of Mr. Slater’s information, his “friend request” to Mr. Belding with full knowledge of the risks to Mr. Slater’s reputation and employment opportunities (i.e., due to inappropriate photos on his Facebook account that would be visible to Mr. Belding), shows that Mr. Morris possessed the “intent to harm” Mr. Slater’s reputation. A counter to this intent claim could arise from the past use of each other’s Facebook access to play pranks. However, in this specific case of Mr. Morris engaging Mr. Slater’s boss via Facebook from Mr. Slater’s account, a reasonable person could assume his intent to harm Mr. Slater given the potential for Mr. Morris benefitting from the harmed reputation. Because of this, the second subelement, and, therefore, the second element as a whole is likely

satisfied.
III. Use of Information Without Authorization or Consent
Mr. Slater’s case likely succeeds in meeting the standard of the “authorization or consent” element of identity theft. In order to fulfill the third element, the defendant must be proven to have used the information “without the authorization or consent of the individual.” WIS. STAT. § 943.201 (2). In State v. Peck, the court implicitly held that information originally obtained with consent that is later used for purposes outside the scope of the original authorization could be considered to be used without consent. State v. Peck, 315 Wis.2d 769. In that case, the court held that the third element was satisfied when a divorced husband used personal information, obtained with consent during marriage, against his ex-wife in a manner that would damage her reputation as a schoolteacher. Id. Similarly here, the extended friendship between Mr. Morris and Mr. Slater reveals implicit consent to possess and use each other’s Facebook access information. Also similar is a use of the information that could be reasonably determined to be outside of the original scope of consent (i.e., to damage Mr. Slater’s reputation). One potential counterargument is that Mr. Slater witnessed Mr. Morris using his Facebook account on the day the “friend request” was sent and failed to stop it. However, Mr. Slater’s lack of knowledge that the information was being used outside of the scope to which he originally consented likely extinguishes this counterargument. Because of the analogous relationship between this case and State v. Peck, the third element is likely satisfied.
IV. Intentional Representation that He/She is the Other Person.
Lastly, Mr. Slater’s claim most likely satisfies the fourth element in regards to intentionally representing himself as the other person. WIS. STAT. § 943.201 (2). The statute states the use of information “without the authorization or consent of the individual and by representing that he or she is the individual” is part of the burden for identity theft. When a stolen credit card was used, the courts ruled, “signing the receipt is a representation that the individual … is authorized.” State v. Clacks, 338 Wis.2d 486 ¶19. Similarly, by logging in using Mr. Slater’s access information, Mr. Morris essentially signed an electronic signature and represented himself as Mr. Slater. In accordance with Clacks, Mr. Morris represented himself as Mr. Slater by utilizing his Facebook profile to send a “friend request” to Mr. Slater’s boss, and, therefore, most likely satisfies the fourth element.