August 1, 2012

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it or disclose its contents, unless the person is doing so for the purpose of committing a criminal or tortious act. Wis. Stat. Ann. § 968.31 (West 2011).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.” Wis. Stat. Ann. § 968.27. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Courts consider several factors in deciding whether an individual’s expectation of privacy in his or her oral statements is objectively reasonable and thus protected under the wiretap law: 1) the volume of the statements; 2) the proximity of other individuals to the speaker, or the potential for others to overhear the speaker; 3) the potential for the communications to be reported; 4) the actions taken by the speaker to ensure his or her privacy; 5) the need to employ technological enhancements for one to hear the speaker’s statements; and 6) the place or location where the statements are made. Wisconsin v. Duchow, 749 N.W.2d 913 (Wis. 2008). In that case, the state Supreme Court held that, under the totality of the circumstances, a school-bus driver did not have a reasonable expectation of privacy in threatening statements he made to a grade-school student who recorded the comments. The school bus was public property, being operated for a public purpose, and because the statements sought to be protected were threats directed at a child being transported to school, the type of speech likely to be reported, the bus driver assumed the risk of disclosure, the court ruled. Wis. Stat. Ann. at 924-25.

Electronic communications: The consent of at least one party to any telephone communication is required to record it. And because the provision of the statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. Wis. Stat. Ann. § 968.27.

Hidden cameras: It is a misdemeanor to install a surveillance device or use a surveillance device that has been installed in a private place to view a nude or partially nude person. Wis. Stat. Ann. § 942.08. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. Wis. Stat. Ann. § 968.31.

Civil suits: Anyone whose wire, electronic or oral communication has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $1,000, and can recover punitive damages, attorney’s fees and court costs as well. Id.

Disclosing recordings: Disclosing the contents of a communication obtained through illegal recording is a felony. Id.