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Thread: Need state statute that OK's 1 party voice recording in WI

  1. #1
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    Need state statute that OK's 1 party voice recording in WI

    My mom is having a possible legal issue with an employer. She spoke to an attorney Mark in Whitewater who told her flat out that it is illegal to record a conversation without both parties knowledge. She has had surgery to remove a cancerous lump. Her POE is threatening and not honor the family medical and leave act.


    This is what I have found so far. Does this mean you can record anywhere, it just may not be accepted in court? Could someone that knows more about the law help me out?



    Wisconsin abides by the Federal law stating that at least one person
    involved in the conversation must consent to the recording. Part of
    the Wisconsin statute states:

    ?A person who is a party to a wire, electronic or oral communication,
    or who has obtained prior consent from one party, can legally record
    and divulge the contents of the communication, unless he does so for
    the purpose of committing a criminal or tortious act.

    Under the statute, consent is not required for the taping of a
    non-electronic communication uttered by a person who does not have a
    reasonable expectation of privacy in that communication. See
    definition of "oral communication," Wis. Stat. 968.27.

    Effective Feb. 1, 2003, the punishment for recording or disclosing the
    contents of a conversation without the appropriate consent is
    imprisonment for up to six years and/or a criminal fine of up to
    $10,000. Wisconsin law expressly authorizes civil damages for
    violations and allows recovery of the greater of actual damages, $100
    for each day of violation or $1,000, along with punitive damages,
    litigation costs and attorney fees.? (?Wisconsin, Wis. Stat. 968.31?
    http://www.rcfp.org/taping/states/wisconsin.html )

    However, if for some reason the tape should need to be heard in a
    Wisconsin court, it usually will not be accepted unless everyone
    involved was told they were being recorded and that the recording
    might be used in court.

    It is perfectly legal (both from a federal and state standpoint) to
    record any meeting or conversation where your tape recorder is in
    view. However, where an expectation of privacy might be presumed by
    the participating parties, consent had best be obtained.
    Last edited by Passive101; 09-24-2010 at 02:11 PM.

  2. #2
    Founder's Club Member bnhcomputing's Avatar
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    968.31(1)
    (1) Except as otherwise specifically provided in ss. 196.63 or 968.28 to 968.30, whoever commits any of the acts enumerated in this section is guilty of a Class H felony:

    968.31(2)
    (2) It is not unlawful under ss. 968.28 to 968.37:


    968.31(2)(c)
    (c) For a person not acting under color of law 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 unless the communication is intercepted for the purpose 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.
    To my understanding that means only ONE person in the conversation has to know it is being recorded.

    Further: http://rcfp.org/taping/states/wisconsin.html
    The site listed seems to support this conclusion also.

  3. #3
    Regular Member littlewolf's Avatar
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    Quote Originally Posted by Passive101 View Post
    My mom is having a possible legal issue with an employer. She spoke to an attorney Mark in Whitewater who told her flat out that it is illegal to record a conversation without both parties knowledge. She has had surgery to remove a cancerous lump. Her POE is threatening and not honor the family medical and leave act.


    This is what I have found so far. Does this mean you can record anywhere, it just may not be accepted in court? Could someone that knows more about the law help me out?



    Wisconsin abides by the Federal law stating that at least one person
    involved in the conversation must consent to the recording. Part of
    the Wisconsin statute states:

    ?A person who is a party to a wire, electronic or oral communication,
    or who has obtained prior consent from one party, can legally record
    and divulge the contents of the communication, unless he does so for
    the purpose of committing a criminal or tortious act.

    Under the statute, consent is not required for the taping of a
    non-electronic communication uttered by a person who does not have a
    reasonable expectation of privacy in that communication. See
    definition of "oral communication," Wis. Stat. 968.27.

    Effective Feb. 1, 2003, the punishment for recording or disclosing the
    contents of a conversation without the appropriate consent is
    imprisonment for up to six years and/or a criminal fine of up to
    $10,000. Wisconsin law expressly authorizes civil damages for
    violations and allows recovery of the greater of actual damages, $100
    for each day of violation or $1,000, along with punitive damages,
    litigation costs and attorney fees.? (?Wisconsin, Wis. Stat. 968.31?
    http://www.rcfp.org/taping/states/wisconsin.html )

    However, if for some reason the tape should need to be heard in a
    Wisconsin court, it usually will not be accepted unless everyone
    involved was told they were being recorded and that the recording
    might be used in court.

    It is perfectly legal (both from a federal and state standpoint) to
    record any meeting or conversation where your tape recorder is in
    view. However, where an expectation of privacy might be presumed by
    the participating parties, consent had best be obtained.
    if you mom is doing the taping,she is the 1 party that gave concent
    Owner Little Wolf Firearms , US ARMY RETIRED 101st Airborne & 84th DIV TRNG Small arms instructor.
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  4. #4
    Regular Member xenophon's Avatar
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    Quote Originally Posted by littlewolf View Post
    if you mom is doing the taping,she is the 1 party that gave concent

    Passive101, that attorney is plain wrong! As long as your mom is part of the conversation, she is by default the one who gave consent to her own recording.

    968.31(2)(c)
    (c) For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication

  5. #5
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    This was my understanding by reading the law as well. The only part I was confused about is the part where it says if someone says the following

    Under the statute, consent is not required for the taping of a
    non-electronic communication uttered by a person who does not have a
    reasonable expectation of privacy in that communication. See
    definition of "oral communication," Wis. Stat. 968.27.

    I told her she should get some other opinions from more knowledgeable attorneys on WI laws.

  6. #6
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    Ifd the attorney who is representing her is not aware of the laws, I would really consider looking for a different attorney to represent her.

    The "WI labor Board" may be a better bet to help her out, I am sure they are better versed in FMLA laws compared to the representing atty.

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