968.31(2)(j)
(j) 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.
968.31(2m)
(2m) Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of
ss. 968.28 to
968.37 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:
968.31(2m)(a)
(a) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
968.31(2m)(c)
(c) A reasonable attorney's fee and other litigation costs reasonably incurred.
968.31(3)
(3) 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 to
968.37.
968.31 Annotation
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 (1976).
968.31 Annotation
An individual, who volunteers to aid the authorities in a lawful, albeit surreptitious, investigation does not commit an injury against the investigated party under sub. (2) (c) simply by participation. Undercover informants must surely realize that evidence they receive may be potentially harmful to the target of the investigation, but this is not the type of injurious act contemplated by the statute. State v. Maloney, 2005 WI 74,
281 Wis. 2d 595,
698 N.W.2d 583,
03-2180.
968.31 Annotation
Consent under sub. (2) (b) may be express or implied in fact from surrounding circumstances indicating that the person knowingly agreed to the surveillance. In the prison setting, an inmate has given implied consent to electronic surveillance when he or she has meaningful notice that a telephone call is subject to monitoring and recording and nonetheless proceeds with the call. State v. Riley, 2005 WI App 203,
287 Wis. 2d 244,
704 N.W.2d 635,
04-2321.
968.31 Annotation
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.
968.32
968.32
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.
968.32 History
History: 1979 c. 32 s.
92 (8).
968.33
968.33
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.
968.33 History
History: 1973 c. 12 s.
37;
1977 c. 187 s.
135; Sup. Ct. Order, 88 Wis. 2d xiii (1979).
968.34
968.34
Use of pen register or trap and trace device restricted. 968.34(1)(1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under
s. 968.36 or
18 USC 3123 or
50 USC 1801 to
1811.
968.34(2)
(2) The prohibition of
sub. (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:
968.34(2)(a)
(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;
968.34(2)(b)
(b) 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 communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or
968.34(2)(c)
(c) Where the consent of the user of that service has been obtained.
968.34(2m)
(2m) The prohibition of
sub. (1) does not apply to a telephone caller identification service authorized under
s. 196.207 (2).
968.34(3)
(3) Whoever knowingly violates
sub. (1) may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
968.35
968.35
Application for an order for a pen register or a trap and trace device. 968.35(1)
(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.
968.35(2)
(2) An application under
sub. (1) shall include all of the following:
968.35(2)(a)
(a) The identity of the person making the application and the identity of the law enforcement agency conducting the investigation.
968.35(2)(b)
(b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
968.35 History
History: 1987 a. 399.
968.36
968.36
Issuance of an order for a pen register or a trap and trace device. 968.36(1)(1) Upon an application made under
s. 968.35, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.
968.36(2)
(2) An order issued under this section shall do all of the following:
968.36(2)(a)
(a) 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.
968.36(2)(b)
(b) Specify the identity, if known, of the person who is the subject of the criminal investigation.
968.36(2)(c)
(c) Specify the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.
968.36(2)(d)
(d) Provide a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
968.36(2)(e)
(e) Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under
s. 968.37.
968.36(3)
(3) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days.
968.36(4)
(4) 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.
968.36(5)
(5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
968.36(5)(a)
(a) The order be sealed until otherwise ordered by the court; and
968.36(5)(b)
(b) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
968.36 History
History: 1987 a. 399.
968.37
968.37
Assistance in the installation and use of a pen register or trap and trace device. 968.37(1)
(1) 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 to
968.37, 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).
968.37(2)
(2) Upon the request of the attorney general, a district attorney or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under
ss. 968.28 to
968.37, a provider of a wire or electronic communication service, landlord, custodian or other person shall install the device forthwith on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device 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 installation and assistance is directed by a court order under
s. 968.36 (5) (b). Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated by the court, at reasonable intervals during regular business hours for the duration of the order.
968.37(3)
(3) A provider of a wire or electronic communication service, landlord, custodian or other person who furnishes facilities or technical assistance under this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance.
968.37(4)
(4) 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.
968.37(5)
(5) A good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action brought under
ss. 968.28 to
968.37.
968.37 History
History: 1987 a. 399.
968.38
968.38
Testing for HIV infection and certain diseases. 968.38(1)(a)
(a) "Health care professional" means a physician or a registered nurse or licensed practical nurse who is licensed under
ch. 441.
968.38(1)(b)
(b) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
968.38(2)
(2) In a criminal action under
s. 940.225,
948.02,
948.025,
948.05,
948.06,
948.085, 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 a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease and to disclose the results of the test or tests as specified in
sub. (4) (a) to
(c):
968.38(2)(a)
(a) The district attorney has probable cause to believe that the defendant has significantly exposed the alleged victim or victim. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.
968.38(2)(b)
(b) 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 so apply for an order.
968.38(2m)
(2m) 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) to
(c), if all of the following apply:
968.38(2m)(a)
(a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of
s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant's blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant.
968.38(2m)(b)
(b) 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.
968.38(3)
(3) The district attorney may apply under
sub. (2) or
(2m) 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:
968.38(3)(a)
(a) At or after the initial appearance and prior to the preliminary examination.
968.38(3)(b)
(b) If the defendant waives the preliminary examination, at any time after the court binds the defendant over for trial and before a verdict is rendered.
968.38(3)(c)
(c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.
968.38(3)(d)
(d) If the court has determined that the defendant is not competent to proceed under
s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.
968.38(4)
(4) The court shall set a time for a hearing on the matter under
sub. (2) during the preliminary examination, if
sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if
sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if
sub. (3) (c) applies; or, subject to
s. 971.13 (4), after the determination that the defendant is not competent, if
sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the defendant has significantly exposed the victim or alleged victim, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain, notwithstanding
s. 252.15 (4) (c), from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:
968.38(4)(a)
(a) The alleged victim or victim, if the alleged victim or victim is not a minor.
968.38(4)(b)
(b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.
968.38(4)(c)
(c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.
968.38(5)
(5) The court shall set a time for a hearing on the matter under
sub. (2m) during the preliminary examination, if
sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if
sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if
sub. (3) (c) applies; or, subject to
s. 971.13 (4), after the determination that the defendant is not competent, if
sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of
s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant's blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain, notwithstanding
s. 252.15 (4) (c), if applicable, from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:
968.38(5)(a)
(a) The alleged victim or victim, if the alleged victim or victim is not a minor.
968.38(5)(b)
(b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.
968.38(5)(c)
(c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.
968.38 Annotation
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).
968.40(1)(1)
Selection of grand jury list. Any judge may, in writing, order the clerk of circuit court to select a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret.
968.40(3)
(3) Examination of prospective jurors. At the time set for the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those who are disqualified, and may excuse others for any reason which seems proper to the judge.
968.40(4)
(4) Additional grand jurors. If after such examination fewer than 17 grand jurors remain, additional prospective jurors shall be selected, summoned and examined until there are at least 17 qualified jurors on the grand jury.
968.40(6)
(6) Time grand jurors to serve. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.
968.40(7)
(7) Orders filed with clerk. All orders mentioned in this section shall be filed with the clerk of court.
968.40(8)
(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).
968.40 History
History: 1971 c. 125 s.
522 (1);
1977 c. 29 s.
1656 (27);
1977 c. 187 ss.
95,
135;
1977 c. 318;
1977 c. 447 s.
210;
1977 c. 449; Stats. 1977 s. 756.10;
1991 a. 39; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.40.
968.40 Annotation
A claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell,
443 U.S. 545 (1979).
