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Friday, February 25, 2011

Phony David Koch Call Wasn't Just A Prank, It May Have Been Identity Theft

A pro-union blogger impersonated David Koch in order to get through to Wisconsin Gov. Scott Walker.  The blogger, pretending to be Koch, made numerous inflammatory and outrageous comments hoping to get a reaction from Walker.  The blogger recorded the phone call, and then released the phone call, causing a political firestorm directed at both Walker and Koch.

While anti-Koch and anti-Walker activists cheered the prank, there is a serious argument to be made that the "prank" was a crime under Wisconsin law.

Wisconsin law protects the "personal identifying information" of individuals.  The term is broadly defined, and includes a person's name:
(b) "Personal identifying information" means any of the following information:


1. An individual's name.
The misappropriation of such "personal identifying information" is a felony if done for purposes listed in the statute, including obtaining anything of value or benefit, or to harm the reputation of the person whose name was misappropriated.
(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:
(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.
(c) To harm the reputation, property, person, or estate of the individual.
The Wisconsin Supreme Court recently upheld the validity of the statute against a First Amendment challenge, State v. Baron (2009) 769 N.W.2d 34, 318 Wis. 2d 60.  (I do think the section of the law as to harming reputation has unanswered First Amendment issues which were not addressed by the Baron case.)
The terms "benefit" and "value" also have been held to convey their normal and usual meaning, and not to require that the victim suffer a financial loss.  State v. Lis (App. 2008) 751 N.W.2d 891, 311 Wis.2d 691.

There certainly is a good argument to be made that the "prank" fits the definition of identity theft. 

There does not seem to be any doubt that the blogger used Koch's name without authority or consent.  The blogger thereby used Koch's "personal identifying information."

The purpose of the use of Koch's name also was to obtain a "benefit" for the blogger, namely access to Gov. Walker, and to obtain something "of value," namely a recording to be used by the blogger. 

Additionally, it appears that there also was the purpose of harming the reputation of Koch, both through the inflammatory statements by the blogger acting as Koch and by creating the appearance of some improper influence by Koch on the political process. 

In sum, there certainly seems to be enough evidence already known at least to justify an investigation by the Madison police as to the possible theft of David Koch's identity, a felony under state law.

Instead, the Madison Police Chief wants an investigation of Gov. Walker, even though there were no statements made by Walker which could constitute a crime.  If the Madison Police Chief wants someone and something to investigate, it is not Gov. Walker.

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  1. What are the laws in Wisconsin regarding the release of recorded phone calls? Most states are pretty strict on these things.
    Not only did that jerk lie and "assume" anothers identity, but did he advise Gov. Walker that he was recording the call?

  2. @myveryown - Wisconsin is a single consent state so you can record your own phone calls, as long as not done to commit a crime. http://www.rcfp.org/taping/states/wisconsin.html

  3. ...as long as not done to commit a crime.

    According to Wisconsin law (and as per the point of this post), in this case it (recording the phone call) seems to have been done during the commission of a felony.

  4. But it sounds like it WAS used to commit a crime. That of identity theft.

  5. And assuming anothers (Koch) identity may just be against the law.
    If one records a conversation as ones own self, well OK, if one is posing as a different person, isn't it a different ballgame?

  6. Who would have to bring charges? Gov. Walker or Koch? Or can the police dept. bring charges, since it was against the state government?

    Whoever - I hope they do! These Leftist losers need to learn some lessons.

  7. I'm guessing Koch has a few more dollars, and a few better lawyers than the moron making the call.

    Should be fun to watch how this develops.

  8. This is O/T but I thought it might be of interest to you.

    A pro-abortion blogger, Theodore Shulman, has been taken into custody by the FBI for making terrorist threats against many prominent pro-lifers.

    Jill Stanek was one of the target, and she wrote about the details on her site (www.jillstanek.com)

  9. TV & Radio stations had to be careful about broadcasting the sound clip because of FCC rules:

    Prank call a hot topic - but you couldn't hear it on TV, radio

    From the article
    "....after snippets of the call appeared on local newscasts, it disappeared from local airwaves. Why?

    Because the FCC forbids airing phone conversations without the permission of the parties on both ends of the call and imposes fines on stations that air them."

  10. I once called in sick for a kid at my high school, pretending to be the kid's father.

    Clearly, I deserve to spend a couple of years in prison over that, right?

  11. 1. I'm with commenter Wisco.

    2. It is dangerous to allow law enforcement, even its investigative aspects, to become a political instrument; it is even more dangerous to allow law enforcement to become a self-interested political actor. Neither the Koch impersonation nor Walker's comments, taken as isolated incidents, warrant official follow-up.

    3. Scott Walker is not an impartial saint. Consider his exempting police and firefighters from his collective-bargaining proposal. Consider his intention to sell state utilities via a no-bid process.

    Nevertheless he is doing more good than harm and I support his efforts against the government unions.

  12. It might not be up to Scott Walker or the state of Wisconsin to pursue this matter. Koch is certainly in a position to at least 'slap' sue that dirty bastiche Ian Murphy. I'd be willing to contribute to the legal costs, if such a need were present.

  13. I if were Koch or advising him, I believe I would let the matter drop. There would be little benefit in pursuing either criminal or civil complaints - other than making Murphy a hero and martyr to the left, enabling him to raise hefty "defense funds" and gain greater notoriety, whereas the talk of the possibility might make him more circumspect for a while.

    Vengeance is seldom a good reason for legal action. For Murphy, just being his despicable self will eventually be punishment enough.

    I think the offense is much more serious than Wisco's prank @26 Feb 11:52 am, but there is just no benefit to be gained from prosecution beyond schadenfreude.

  14. IANAL. Murphy would have had to release the taped conversation to the public while still purporting to be Koch to be in violation of this statute. As is, I don't see how this is actionable.

  15. Yes, rusty, the billionaire, David Koch, needs your trailer rent money to sue Ian Murphy for an alleged statutory violation....wow, you understand the law less than you do politics. Silly, rusty, still eaten up with anger and resentment and no outlet save unemployed English professors and revanchist neo-Confederates.

    As for the Professor's claim, apparently he needs a refresher course on statutory interpretation. Conjunctions and verbs are sort of a giveaway (unless he forgot?). To wit: "Whoever... intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual..."

    The point of this sentence is clearly to make identity theft illegal, hence the use of "or", not just a phone call where you use someone else's name. Further, how was David Koch's reputation harmed in this phone call. Scott Walkers reputation as a tool of rich and powerful plutocrats was validated, but all Murphy showed about Koch was that Tea partiers will genuflect around anyone claiming his name.

    0 for 2, William. Nice try, though