Is Anyone Out There Listening: One Party Consent and Wisconsin's Wire Tap Law

Waukesha County Bar Association

Family Law Section

January 15, 2009

I. Wis. Stat. 968.27 to 968.31 [1] (WESCL) governs the subject matter on a State level.

i. Created to protect individuals from governmental intrusions that infringe upon the expectation of privacy.

ii. 18USC§2510 et seq. established procedures to assist law enforcement and the states to balance the needs of law enforcement and individual privacy rights.

iii. Congress authorized states to pass laws that create a similar but not less restrictive set of guidelines dealing with electronic surveillance.

iv. Section 968.27-968.31 was born and is alive and well today. For the most part, WESCL and 18§2510 et seq. are identical.

II. WESL applies to basically three types of communications: oral, electronic and wire.

i. Oral

1. Any oral (not aural) communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. It does not include an electronic communication.

ii. Wire

1. Any aural transfer made in whole or part through the use of facilities for the transmission of communications by the aid of wire, cable or microwave, or other like connection between the point of origin and the point of reception. It includes the electronic storage of any such aural transfer.

2. Congress has extended the definition of wire communication to include cordless telephone transmissions. This amendment conflicts with Wisconsin law which excludes cordless telephone communications from the coverage of WESCL. See 968.17 and State v. Smith, 149 Wis. 2d 89 (1989) and as such federal law controls.

a. Note that the incorporation of an "expectation of privacy" into the definition of oral communication does NOT exist in the definition of wire communication, which is protected regardless of one's expectation of privacy.

b. The notion that a person in police custody can have all telephone calls intercepted is not true and would violate the definition of wire communication.

c. Consent is used for jail inmate calls because they are given notice that the call is being monitored.

d. Ownership of phone is not material, so just because you own the phone does not mean you can secretly record a phone call. If all participants to a phone call are unaware that a nonparty is intercepting it, it is illegal. See Deal v. Spears, 980 F. 2d 1153 (8 ^th Cir. 1992) Consent, actual or implied, may be a defense however.

iii. Electronic

1. Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature wholly or partially transmitted by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

2. Congress has prohibited the intentional interception of electronic communications transmitted on cordless telephones.

3. Unlike oral communication, and just like a wire communication, an electronic communication is not restricted to those communications uttered with the reasonable expectation that they are not subject to intercept.

III. Restrictions on the interception and use of communications

a. As a general rule, the interception (the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device, see 968.27 (9)), of oral, wire and electronic communications are prohibited without:

i. A judicially authorized intercept order which must comply STRICTLY with the detailed procedures in sec. 968.28-968.30

ii. Must be applied for by BOTH the District Attorney AND the Attorney General jointly

iii. The application must go to the Chief Judge of the judicial administrative district for the county where the interception is to take place

iv. Limited to certain classes of offenses (certain felony cases)

v. Generally may only be disclosed to other officers and then only to the extent that use is appropriate to the officers' performance of his/her duties.

vi. However disclosure is authorized while giving testimony under oath in a felony case that was the proper subject of an application. See 968.29(3)

1. Also see State v. Gilmore 193 Wis. 2d 403(1995) where use in a criminal complaint requires the complaint be sealed. Recent cases in Wisconsin have followed this directive. (Mc Gee)

IV. Communications outside of WESCL

a. Oral communications where no REASONABLE expectation of privacy exists.

i. Note again this is NOT the case with wire and electronic communications

ii. 968.27(12) by definition makes clear that it is not an oral communication if the party has no expectation of privacy. If it is not an oral communication, then the protections of WESCL do not apply.

1. In determining if a person has an expectation of privacy that is reasonable, the court will look to a variety of factors and circumstances.

2. It must be both an actual subjective belief and one that is reasonable, that is, one that society is prepared to recognize as reasonable.

3. Numerous factors are looked to. Latest and greatest case on this topic is State v. Duchow, 310 Wis. 2d 1 (2008)

iii. Numerous courts held surreptitious monitoring of conversations between persons in police custody and in the squad, are not "oral communications". See U.S. V. Harrelson, 754 F.2d 1153 (5 ^th Cir. 1985)

b. Radio Transmissions

i. WESCL excludes radio transmissions. See 968.31(2) (e).

ii. Also see U.S. v. Peterson, 812 F.2d 486 (9 ^th Cir. 1987) and Hill v. U.S., 459 828 (1982).

c. Numerous devices are excluded from coverage under WESCL. If the monitoring occurs with a device excluded under Wis. Stat. 968.27(7), then the prohibitions do not apply. Such devices include:

i. A hearing aid, telephone or telegraph furnished to the subscriber to use in the ordinary course of business (not including the nonconsensual recording of conversations)

d. Tracking device, since it does not intercept the contents of a communication.

e. Trap and Trace and pen registers. Same as above

V. One Party Consent Interceptions

a. A party to a communication may lawfully consent to an interception through recording or monitoring without the notice or consent of other parties to the communication.

i. See U.S. v. White, 401 U.S. 745 (1971) where court held the consenting party lacked a reasonable expectation of privacy.

b. Wis. Stats. 968.31

i. 968.31(2)(b) Acting under Color of Law allows a person acting in such capacity to intercept a wire, oral or electronic communication IF that person is party to the communication or has given prior consent.

ii. Also see 968.29(3)(b) which allows that same person to disclose the contents while giving testimony under oath in any felony case listed in 968.29(3)(a), but that person must be available to testify and/or authenticate the recording.

iii. 968.31(2) (c) Not Acting under Color of Law allows a person to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception.

1. UNLESS the communication is intercepted for the purposes of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act. Under those circumstances, the intercept is illegal

2. Also note there is no counterpart here like there is in 968.29(3) (b) as to allowing disclosure in very limited circumstances of such communication by a person acting under color of law.

c. General prohibition against admissibility

i. Absent a court order, one party consent recordings are generally inadmissible. See State ex rel Arnold v. County Court, 51 Wis. 2d 434 (1971)

ii. A party may lawfully consent to the interception of a conversation by a person not a party to the conversation, but one party consent recordings are not statutorily authorized.

1. 968.29 restricts the disclosure on intercepted communications, unless one of the exceptions listed are present, one party consent recordings are inadmissible in state courts absent a court order.

2. Note that this does not restrict the testimony of the party who consented to the conversations interception. See State v. Smith 72 Wis. 2d 711(1976) and State v. Maloney 161 Wis. 2d 127 (1991)

3. Also private parties who make one party consent tapes may disclose their contents to the state, even though the tape is not admissible in the states case-in chief. See State v. Waste Management, Inc., 81 Wis. 2d 555 (1978)

iii. Sec. 885.365(1) also makes clear that GENERALLY telephonic recordings of communications are not admissible in civil actions in this state unless 968.28-968.37 is used. Several exceptions are listed, but key is person being recorded is aware of the recording, told they are being recorded and may be used in court.

VI. Penalties

a. 968.31(2m) creates a civil cause of action

i. Actual damages, but not less than $100 per day of violation or $1000.00

ii. Punitive damages

iii. Reasonable attorney fees and litigation costs

b. 968.31 (1) also creates possible criminal sanctions

i. Class H felony fine up to $10,000 or imprisonment for 6 years (3 and 3) [2]

Paul E. Bucher, J.D.
Bucher Law Group
355 Austin Circle Suite 155
Delafield, WI 53018
262-303-4916
pbucher@bucherlawgroup.com

[1] Note that the use, application and installation of Pen Registers or Trap and Trace devices are not the subject of this discussion. See Wis. Stat. 968.34

[2] The views in this outline represent the views of Paul E. Bucher and not Gatzke & Ruppelt, S.C. A portion of the material in this outline was obtained from previous presentations by Attorney Ruth Bachman, Attorney Douglas Haag, Attorney Don Latorraca and Attorney Patrick Kenney. Many thanks!