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MADISON - The Wisconsin Department of Justice (DOJ) will file a brief today with the Wisconsin Court of Appeals urging the appellate court to reverse a ruling by the Jefferson County Circuit Court that dismissed an identity theft charge against a former City of Jefferson EMS technician. If successful, the State's appeal would allow the Jefferson County District Attorney to proceed with identity theft charges against Christopher Baron.
According to the criminal complaint, Christopher Baron hacked into the work computer of his boss, Emergency Medical Services Director Mark Fisher, and sent several e-mails that he found in Mr. Fisher's e-mail account to about ten people. The forwarded e-mails appeared to have come from Mr. Fisher and suggested that Mr. Fisher was using an apartment owned by the EMS Department to conduct an extramarital affair. The day after Baron sent those e-mails, Mr. Fisher committed suicide.
Wisconsin law criminalizes the unauthorized use of an individual's personal identifying information or documents to obtain credit, money, goods, services, employment, or any other thing of value or benefit; to avoid civil or criminal process or penalty; or to harm the reputation, property, person, or estate of the individual whose identity has been used. Baron was charged with six criminal counts, including a charge of identity theft that alleges that Baron used Mr. Fisher's identity without Mr. Fisher's consent with the intent to harm Mr. Fisher's reputation. Baron moved to dismiss that charge, arguing that he had a First Amendment right to disseminate truthful information about a public official, even if his intent was to harm that official's reputation. The trial court agreed with Baron's argument and dismissed the identity theft charge.
In its brief to the court of appeals urging reversal of the trial court's dismissal, the State argues that the conduct prohibited by the identity theft statute is the unauthorized use of another person's identity, not the intent associated with that use. While the State must prove that Baron's intent was to harm Fisher's reputation, the conduct for which Baron would be punished were he to be found guilty is the unauthorized use of Fisher's identity. For that reason, the State argues, application of the statute to Baron's conduct does not violate Baron's right under the First Amendment to criticize the actions of a public official.
Attorney General J.B. Van Hollen, whose office is handling the appeal, emphasized the importance of the issue raised by the State's appeal. "Citizens have a fundamental constitutional right to criticize public officials, so long as they do not disseminate information they know to be false or act with reckless disregard to the truth," Van Hollen said. "There is no constitutional right, however, to damage someone's reputation by assuming that person's identity without their consent. Wisconsin's laws protect all individuals against identity theft, not by limiting expression, but by prohibiting conduct."
This is a pretrial appeal. Baron enjoys a presumption of innocence, and the State will be required to prove his guilt beyond a reasonable doubt at trial.
Jefferson County District Attorney David Wambach is the prosecutor handling the case. The State of Wisconsin is represented in the Court of Appeals by Assistant Attorney General Jeffrey Kassel.