For users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.
For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of the service.
Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of ss. 968.28
shall have a civil cause of action against any person who intercepts, discloses or uses, or procures any other person to intercept, disclose, or use, the communication, and shall be entitled to recover from any such person:
A reasonable attorney's fee and other litigation costs reasonably incurred.
Good faith reliance on a court order or on s. 968.30 (7)
shall constitute a complete defense to any civil or criminal action brought under ss. 968.28
The testimony of an undercover police officer who was carrying a concealed eavesdropping device under sub. (2) is not the product of the eavesdropping and is admissible even assuming the eavesdropping was unconstitutional. State v. Smith, 72 Wis. 2d 711
, 242 N.W.2d 184
If a warrantless intercept complies with sub. (2) (b), commonly referred to as the one-party consent exception, the contents of the intercept may be disclosed in a felony proceeding. The phrase "person acting under color of law" does not exclude law enforcement officers. State v. Ohlinger, 2009 WI App 44, 317 Wis. 2d 445
, 767 N.W.2d 336
The use of the "called party control device" by the communications common carrier to trace bomb scares and other harassing telephone calls would not violate any law if used with the consent of the receiving party. 60 Atty. Gen. 90.
Forfeiture of contraband devices.
Any electronic, mechanical, or other intercepting device used in violation of s. 968.31 (1)
may be seized as contraband by any peace officer and forfeited to this state in an action by the department of justice under ch. 778
Reports concerning intercepted wire or oral communications.
In January of each year, the department of justice shall report to the administrative office of the United States courts such information as is required to be filed by 18 USC 2519
. A duplicate copy of the reports shall be filed, at the same time, with the office of the director of state courts.
Use of pen register or trap and trace device restricted. 968.34(2)(a)
Relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;
Application for an order for a pen register or a trap and trace device. 968.35(1)
The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36
authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a circuit court for the county where the device is to be located.
An application under sub. (1)
shall include all of the following:
The identity of the person making the application and the identity of the law enforcement agency conducting the investigation.
History: 1987 a. 399
Issuance of an order for a pen register or a trap and trace device. 968.36(2)
An order issued under this section shall do all of the following:
Specify the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.
Extensions of the order may be granted, but only upon an application for an order under s. 968.35
and upon the judicial finding required by sub. (1)
. The period of extension shall be for a period not to exceed 60 days.
Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to install and use a pen register under ss. 968.28
, a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the investigative or law enforcement officer forthwith all information, facilities and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order under s. 968.36 (5) (b)
No cause of action may lie in any court against any provider of a wire or electronic communication service, its officers, employees or agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order under s. 968.36
History: 1987 a. 399
Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider. 968.375(2)(2)
For purposes of this section, a person is considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion.
Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a subpoena requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the subpoena a record or other information pertaining to a subscriber or customer of the service, including any of the following relating to the subscriber or customer:
Local and long distance telephone connection records, or records of session times and durations.
A subpoena under this subsection may not require disclosure of the contents of communications.
Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a warrant requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the warrant any of the following:
The content of a wire or electronic communication that is in electronic storage in an electronic communications system or held or maintained by a provider of remote computing service.
(5) Basis, application for, and issuance of subpoena or warrant. Section 968.12 (2)
applies to the basis and application for, and issuance of, a subpoena under sub. (3)
or a warrant under sub. (4)
as it applies to the basis and application for, and issuance of, a search warrant under s. 968.12
(6) Manner of service.
A subpoena or warrant issued under this section may be served in the manner provided for serving a summons under s. 801.11 (5)
or, if delivery can reasonably be proved, by United States mail, delivery service, telephone facsimile, or electronic transmission.
(7) Time for service.
A subpoena or warrant issued under this section shall be served not more than 5 days after the date of issuance.
(9) Motion to quash.
The person on whom a subpoena or warrant issued under this section is served may file a motion to quash the subpoena or warrant with the judge who issued the subpoena or warrant. If the person files the motion within the time for production of records or information, the judge shall hear and decide the motion within 8 days after the motion is filed.
(10) Law enforcement presence not required.
The presence of a law enforcement officer is not required for service or execution of a subpoena or warrant issued under this section.
The customer or subscriber provides consent for the particular disclosure.
The provider of electronic communication or remote computing service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the information is required to prevent the death or injury or to mitigate the injury.
Testing for HIV infection and certain diseases. 968.38(1)(a)
"Health care professional" means a physician or a registered nurse or licensed practical nurse who is licensed under ch. 441
In a criminal action under s. 940.225
, or 948.095
, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of the test or tests as specified in sub. (4) (a)
The district attorney has probable cause to believe that the alleged victim or victim has had contact with body fluid of the defendant that constitutes a significant exposure. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.
In a criminal action under s. 946.43 (2m)
, the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a)
, if all of the following apply:
The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to apply for an order.
The district attorney may apply under sub. (2)
for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice:
At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.
The alleged victim or victim, if the alleged victim or victim is not a minor.
The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.
Acquittal on a charge of sexual intercourse with a minor did not prevent an order for HIV testing following a conviction for sexual assault; the test is probable cause and is not governed by the outcome of the trial. State v. Parr, 182 Wis. 2d 349
, 513 N.W.2d 647
(Ct. App. 1994).
(7) Orders filed with clerk.
All orders mentioned in this section shall be filed with the clerk of court.
(8) Intercounty racketeering and crime.
When a grand jury is convened pursuant to this section to investigate unlawful activity under s. 165.70
, and such activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d)
A claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell, 443 U.S. 545
Every grand jury shall when ordered by the judge ordering such grand jury, employ one or more reporters to attend their sessions and to make and transcribe a verbatim record of all proceedings had before them.
Any person who violates an oath or affirmation required by sub. (2)
is guilty of a Class H felony.
The presiding juror of every grand jury and the district attorney or other prosecuting officer who is before the grand jury may administer all oaths and affirmations in the manner prescribed by law to witnesses who appear before the jury for the purpose of testifying in any matter of which the witnesses have cognizance. At the request of the court, the presiding juror shall return to the court a list, under his or her hand, of all witnesses who are sworn before the grand jury. That list shall be filed by the clerk of circuit court.
History: 1977 c. 187
; 1977 c. 449
; Stats. 1977 s. 756.14; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.44.
Witness rights; transcripts. 968.45(1)
Any witness appearing before a grand jury may have counsel present, but the counsel shall not be allowed to examine his or her client, cross-examine other witnesses or argue before the judge. Counsel may consult with his or her client while before a grand jury. If the prosecuting officer, attorney for a witness or a grand juror believes that a conflict of interest exists for an attorney or attorneys to represent more than one witness before a grand jury, the person so believing may make a motion before the presiding judge to disqualify the attorney from representing more than one witness before the grand jury. A hearing shall be held upon notice with the burden upon the moving party to establish the conflict.
No grand jury transcript may be made public until the trial of anyone indicted by the grand jury and then only that portion of the transcript that is relevant and material to the case at hand. This subsection does not limit the defendant's rights to discovery under s. 971.23
History: 1979 c. 291
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.45.
Notwithstanding s. 757.14
, all motions, including but not limited to those for immunity or a privilege, brought by a prosecuting officer or witness appearing before a grand jury shall be made, heard and decided in complete secrecy and not in open court if the prosecuting officer or witness bringing the motion or exercising the immunity or privilege so requests.
History: 1979 c. 291
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.46.
District attorney, when to attend.
Whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of examining witnesses in their presence or of giving them advice upon any legal matter, and to issue subpoenas and other process to bring up witnesses.
History: 1977 c. 187
; Stats. 1977 s. 756.16; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.48.
Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997).
Report progress and return indictments.
A grand jury may report progress and return indictments to the court from time to time during its session and until discharged.
History: 1977 c. 187
; Stats. 1977 s. 756.17; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.50.
A grand jury performs a judicial rather than a legislative function; therefore, a progress report unconnected to an indictment may not be made public. State ex rel. Caledonia v. Racine County Ct. 78 Wis. 2d 429
, 254 N.W.2d 317
Procedure upon discharge of grand jury.
When the grand jury is discharged the clerk shall collect all transcripts of testimony, minutes of proceedings, exhibits and other records of the grand jury, and deliver them as the jury directs either to the attorney general or to the district attorney, or upon approval of the court deliver them to the clerk of the court who shall impound them subject to the further order or orders of the court.
Indictment not to be disclosed.
No grand juror or officer of the court, if the court shall so order, shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested.
Votes not to be disclosed.
No grand juror may be allowed to state or testify in any court in what manner he or she or any other member of the jury voted on any question before them, or what opinion was expressed by any juror in relation to the question.
When testimony may be disclosed.
Members of the grand jury and any grand jury reporter may be required by any court to testify whether the testimony of a witness examined before the jury is consistent with or different from the evidence given by the witness before the court; and they may also be required to disclose the testimony given before the grand jury by any person upon a complaint against the person for perjury, or upon trial for the offense. Any transcript of testimony taken before the grand jury and certified by a grand jury reporter to have been carefully compared by the reporter with his or her minutes of testimony so taken and to be a true and correct transcript of all or a specified portion of the transcript, may be received in evidence with the same effect as the oral testimony of the reporter to the facts so certified, but the reporter may be cross-examined by any party as to the matter.
History: 1977 c. 187
; Stats. 1977 s. 756.21; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.53.