An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, 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.
The consent of at least one party to a conversation is required to record “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, 968.31. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy.
Wisconsin courts look to the “totality of the circumstances” in determining whether an individual has a reasonable expectation of privacy in his or her oral statements, including “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.” State v. Duchow, 749 N.W.2d 913, 920-21 (Wis. 2008).
The consent of at least one party to any telephone conversation is required to record it. Wis. Stat. Ann. § 968.31. And because the provision of the law 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.
It is a misdemeanor to install or use a surveillance device in a private place to observe a nude or partially nude person. Wis. Stat. Ann. § 942.08. In addition, installation or use of a recording device to “up-skirt,” “down-blouse,” or otherwise record, without consent, a part of the body that is not otherwise visible is a felony. Id. 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 (e.g., filming conversations on public streets or in a hotel lobby).
Illegally recording an in-person, telephone or electronic conversation is a felony offense. Wis. Stat. Ann. § 968.31.
Anyone whose in-person, telephone or electronic conversation 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 the violation, or $1,000, and can also recover punitive damages, attorney’s fees and court costs. Wis. Stat. Ann. § 968.31.
Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a felony. Wis. Stat. Ann. § 968.31.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Seventh Circuit, which includes Wisconsin, has held that there is a First Amendment right to record government officials performing their duties in public. Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012).