SB82-SSA1,488
18Section
488. 968.27 (6) of the statutes is renumbered 968.305 (6) and amended
19to read:
SB82-SSA1,134,2320
968.305
(6) "Electronic communications system" means any wire, radio,
21electromagnetic, photooptical
, or photoelectronic facilities for the transmission of
22electronic communications, and any computer facilities or related electronic
23equipment for the electronic storage of those communications.
SB82-SSA1,489
24Section
489. 968.27 (7) of the statutes is renumbered 968.305 (7), and 968.305
25(7) (intro.) and (a) (intro.) and 1., as renumbered, are amended to read:
SB82-SSA1,135,3
1968.305
(7) (intro.) "Electronic, mechanical
, or other device" means any device
2or apparatus which can be used to intercept a wire, electronic
, or oral communication
3other than
one of the following:
SB82-SSA1,135,64
(a) (intro.) Any telephone or telegraph instrument, equipment, or facilities, or
5any component
thereof, which is of a telephone or telegraph instrument, equipment,
6or facilities, that is any of the following:
SB82-SSA1,135,117
1. Furnished to the subscriber or user by a provider of electronic or wire
8communication service in the ordinary course of its business and being used by the
9subscriber or user in the ordinary course of its business or furnished by the
10subscriber or user for connection to the facilities of the service and used in the
11ordinary course of its business
; or.
SB82-SSA1,490
12Section
490. 968.27 (8) of the statutes is renumbered 968.305 (8).
SB82-SSA1,491
13Section
491. 968.27 (9) of the statutes is renumbered 968.305 (9) and amended
14to read:
SB82-SSA1,135,1715
968.305
(9) "Intercept" means the aural or other acquisition of the contents of
16any wire, electronic
, or oral communication through the use of any electronic,
17mechanical
, or other device.
SB82-SSA1,492
18Section
492. 968.27 (10) of the statutes is renumbered 968.305 (10).
SB82-SSA1,493
19Section
493. 968.27 (11) of the statutes is renumbered 968.305 (11) and
20amended to read:
SB82-SSA1,135,2221
968.305
(11) "Judge" means the judge sitting at the time an application is made
22under s.
968.30 968.335 or his or her successor.
SB82-SSA1,494
23Section
494. 968.27 (12) and (13) of the statutes are renumbered 968.305 (12)
24and (13).
SB82-SSA1,495
25Section
495. 968.27 (14) of the statutes is renumbered 968.305 (14).
SB82-SSA1,496
1Section
496. 968.27 (14g) of the statutes is renumbered 968.305 (14g).
SB82-SSA1,497
2Section
497. 968.27 (15) of the statutes is renumbered 968.305 (15).
SB82-SSA1,498
3Section
498. 968.27 (16) (intro.), (a) and (b) of the statutes are consolidated,
4renumbered 968.305 (16) and amended to read:
SB82-SSA1,136,75
968.305
(16) "User" means any person
who or entity that
: (a) Uses uses an
6electronic communication service
; and
(b) Is duly is authorized by the provider of the
7service to engage in that use.
SB82-SSA1,499
8Section
499. 968.27 (17) of the statutes is renumbered 968.305 (17).
SB82-SSA1,500
9Section
500. 968.28 of the statutes is renumbered 968.315 and amended to
10read:
SB82-SSA1,137,2
11968.315 Application for court order to intercept communications. The
12attorney general together with the district attorney of any county may approve a
13request of an investigative or law enforcement officer to apply to the chief judge of
14the judicial administrative district for the county where the interception is to take
15place for an order authorizing or approving the interception of wire, electronic
, or
16oral communications. The chief judge may under s.
968.30 968.335 grant an order
17authorizing or approving the interception of wire, electronic
, or oral communications
18by investigative or law enforcement officers having responsibility for the
19investigation of the offense for which the application is made. The authorization
20shall be permitted only if the interception may provide or has provided evidence of
21the commission of the offense of homicide, felony murder, kidnapping, commercial
22gambling, bribery, extortion, dealing in controlled substances or controlled
23substance analogs, a computer crime that is a felony under s. 943.70, sexual
24exploitation of a child under s. 948.05, trafficking of a child under s. 948.051, child
25enticement under s. 948.07, use of a computer to facilitate a child sex crime under
1s. 948.075, or soliciting a child for prostitution under s. 948.08, or any conspiracy to
2commit any of the foregoing offenses.
SB82-SSA1,501
3Section
501. 968.29 of the statutes is renumbered 968.325 and amended to
4read:
SB82-SSA1,137,12
5968.325 Authorization for disclosure and use of intercepted wire,
6electronic, or oral communications.
(1) Any investigative or law enforcement
7officer who, by any means authorized by ss.
968.28
968.315 to
968.37 968.405 or
18
8USC 2510 to
2520, has obtained knowledge of the contents of any wire, electronic
, 9or oral communication, or evidence derived therefrom, may disclose the contents to
10another investigative or law enforcement officer only to the extent that the disclosure
11is appropriate to the proper performance of the official duties of the officer making
12or receiving the disclosure.
SB82-SSA1,137,17
13(2) Any investigative or law enforcement officer who, by any means authorized
14by ss.
968.28 968.315 to
968.37 968.405 or
18 USC 2510 to
2520, has obtained
15knowledge of the contents of any wire, electronic
, or oral communication or evidence
16derived therefrom may use the contents only to the extent the use is appropriate to
17the proper performance of the officer's official duties.
SB82-SSA1,137,25
18(3) (a) Any person who has received, by any means authorized by ss.
968.28 19968.315 to
968.37 968.405 or
18 USC 2510 to
2520 or by a like statute of any other
20state, any information concerning a wire, electronic
, or oral communication or
21evidence derived therefrom intercepted in accordance with ss.
968.28 968.315 to
22968.37 968.405, may disclose the contents of that communication or that derivative
23evidence only while giving testimony under oath or affirmation in any proceeding in
24any court or before any magistrate or grand jury in this state, or in any court of the
25United States or of any state, or in any federal or state grand jury proceeding.
SB82-SSA1,138,8
1(b) In addition to the disclosure provisions of par. (a), any person who has
2received, in the manner described under s.
968.31
968.345 (2) (b), any information
3concerning a wire, electronic
, or oral communication or evidence derived therefrom,
4may disclose the contents of that communication or that derivative evidence while
5giving testimony under oath or affirmation in any proceeding described in par. (a) in
6which a person is accused of any act constituting a felony, and only if the party who
7consented to the interception is available to testify at the proceeding or if another
8witness is available to authenticate the recording.
SB82-SSA1,138,11
9(4) No otherwise privileged wire, electronic
, or oral communication intercepted
10in accordance with, or in violation of, ss.
968.28
968.315 to
968.37 968.405 or
18 USC
112510 to
2520, may lose its privileged character.
SB82-SSA1,138,21
12(5) When an investigative or law enforcement officer, while engaged in
13intercepting wire, electronic
, or oral communications in the manner authorized,
14intercepts wire, electronic
, or oral communications relating to offenses other than
15those specified in the order of authorization or approval, the contents thereof, and
16evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2).
17The contents and any evidence derived therefrom may be used under sub. (3) when
18authorized or approved by the judge who acted on the original application where the
19judge finds on subsequent application, made as soon as practicable but no later than
2048 hours, that the contents were otherwise intercepted in accordance with ss.
968.28 21968.315 to
968.37 968.405 or
18 USC 2510 to
2520 or by a like statute.
SB82-SSA1,502
22Section
502. 968.30 of the statutes is renumbered 968.335, and 968.335 (title),
23(1) (intro.), (b) (intro.), 1., 2. and 3. and (e), (3) (intro.), (a) and (d), (4) (intro.), (a), (b),
24(c) and (d), (5), (6), (7) (a) and (b), (8), (9) and (10), as renumbered, are amended to
25read:
SB82-SSA1,139,6
1968.335 (title)
Procedure for interception of wire, electronic, or oral
2communications. (1) (intro.) Each application for an order authorizing or
3approving the interception of a wire, electronic
, or oral communication shall be made
4in writing upon oath or affirmation to the court and shall state the applicant's
5authority to make the application and may be upon personal knowledge or
6information and belief. Each application shall include the following information:
SB82-SSA1,139,97
(b) (intro.) A full and complete statement of the facts and circumstances relied
8upon by the applicant, to justify the applicant's belief that an order should be issued,
9including
all of the following:
SB82-SSA1,139,1110
1. Details of the particular offense that has been, is being, or is about to be
11committed
;.
SB82-SSA1,139,1312
2. A particular description of the nature and location of the facilities from which
13or the place where the communication is to be intercepted
;.
SB82-SSA1,139,1514
3. A particular description of the type of communications sought to be
15intercepted
; and.
SB82-SSA1,139,2116
(e) A full and complete statement of the facts concerning all previous
17applications known to the individual authorizing and making the application, made
18to any court for authorization to intercept, or for approval of interceptions of, wire,
19electronic
, or oral communications involving any of the same persons, facilities
, or
20places specified in the application, and the action taken by the court on each such
21application
; and.
SB82-SSA1,139,25
22(3) (intro.) Upon the application the court may enter an ex parte order, as
23requested or as modified, authorizing or approving interception of wire, electronic
, 24or oral communications, if the court determines on the basis of the facts submitted
25by the applicant that all of the following exist:
SB82-SSA1,140,3
1(a) There is probable cause for belief that an individual is committing, has
2committed, or is about to commit a particular offense enumerated in s.
968.28 3968.315.
SB82-SSA1,140,74
(d) There is probable cause for belief that the facilities from which, or the place
5where, the wire, electronic
, or oral communications are to be intercepted are being
6used, or are about to be used, in connection with the commission of the offense, or are
7leased to, listed in the name of, or commonly used by the person.
SB82-SSA1,140,9
8(4) (intro.) Each order authorizing or approving the interception of any wire,
9electronic
, or oral communication shall specify
all of the following:
SB82-SSA1,140,1110
(a) The identity of the person, if known, whose communications are to be
11intercepted
;.
SB82-SSA1,140,1412
(b) The nature and location of the communications facilities which, or the place
13where authority to intercept is granted and the means by which such interceptions
14shall be made
;.
SB82-SSA1,140,1615
(c) A particular description of the type of communication sought to be
16intercepted and a statement of the particular offense to which it relates
;.
SB82-SSA1,140,1817
(d) The identity of the agency authorized to intercept the communications and
18of the person authorizing the application
; and.
SB82-SSA1,141,11
19(5) No order entered under this section may authorize or approve the
20interception of any wire, electronic
, or oral communication for any period longer than
21is necessary to achieve the objective of the authorization, nor in any event longer
22than 30 days. The 30-day period begins on the earlier of the day on which the
23investigative or law enforcement officer first begins to conduct an interception under
24the order or 10 days after the order is entered. Extensions of an order may be
25granted, but only upon application for an extension made in accordance with sub. (1)
1and the court making the findings required by sub. (3). The period of extension shall
2be no longer than the authorizing judge deems necessary to achieve the purposes for
3which it was granted and in no event be for longer than 30 days. Every order and
4extension thereof shall contain a provision that the authorization to intercept shall
5be executed as soon as practicable, shall be conducted in such a way as to minimize
6the interception of communications not otherwise subject to interception under this
7chapter, and must terminate upon attainment of the authorized objective, or in any
8event in 30 days. In the event the intercepted communication is in a code or foreign
9language, and an expert in that foreign language or code is not reasonably available
10during the interception period, minimization may be accomplished as soon as
11practicable after the interception.
SB82-SSA1,141,16
12(6) Whenever an order authorizing interception is entered pursuant to ss.
13968.28 968.315 to
968.33 968.365, the order may require reports to be made to the
14court which issued the order showing what progress has been made toward
15achievement of the authorized objective and the need for continued interception.
16Such reports shall be made at such intervals as the court requires.
SB82-SSA1,142,8
17(7) (a) The contents of any wire, electronic
, or oral communication intercepted
18by any means authorized by ss.
968.28 968.315 to
968.37 968.405 shall, if possible,
19be recorded on tape or wire or other comparable device. The recording of the contents
20of any wire, electronic
, or oral communication under this subsection shall be done in
21such way as will protect the recording from editing or other alterations. Immediately
22upon the expiration of the period of the order or extensions thereof all such
23recordings and records of an intercepted wire, electronic
, or oral communication
24shall be filed with the court issuing the order and the court shall order the same to
25be sealed. Custody of the recordings and records shall be wherever the judge
1handling the application shall order. They shall not be destroyed except upon an
2order of the issuing or denying judge and in any event shall be properly kept and
3preserved for 10 years. Duplicate recordings and other records may be made for use
4or disclosure pursuant to the provisions for investigations under s.
968.29 968.325 5(1) and (2). The presence of the seal provided for by this subsection, or a satisfactory
6explanation for the absence thereof, shall be a prerequisite for the use or disclosure
7of the contents of any wire, electronic
, or oral communication or evidence derived
8therefrom under s.
968.29 968.325 (3).
SB82-SSA1,142,159
(b) Applications made and orders granted under ss.
968.28 968.315 to
968.33 10968.365 together with all other papers and records in connection therewith shall be
11ordered sealed by the court. Custody of the applications, orders
, and other papers
12and records shall be wherever the judge shall order. Such applications and orders
13shall be disclosed only upon a showing of good cause before the judge and shall not
14be destroyed except on order of the issuing or denying judge, and in any event shall
15be kept for 10 years.
SB82-SSA1,142,24
16(8) The contents of any intercepted wire, electronic
, or oral communication or
17evidence derived therefrom shall not be received in evidence or otherwise disclosed
18in any trial, hearing
, or other proceeding in any court of this state unless each party,
19not less than 10 days before the trial, hearing
, or proceeding, has been furnished with
20a copy of the court order, and accompanying application, under which the
21interception was authorized or approved. This 10-day period may be waived by the
22judge if he or she finds that it was not possible to furnish the party with the above
23information 10 days before the trial, hearing
, or proceeding and that the party will
24not be prejudiced by the delay in receiving the information.
SB82-SSA1,143,17
1(9) (a) Any aggrieved person in any trial, hearing
, or proceeding in or before
2any court, department, officer, agency, regulatory body
, or other authority of this
3state, or a political subdivision thereof, may move before the trial court or the court
4granting the original warrant to suppress the contents of any intercepted wire,
5electronic
, or oral communication, or evidence derived therefrom, on the grounds
6that the communication was unlawfully intercepted; the order of authorization or
7approval under which it was intercepted is insufficient on its face; or the interception
8was not made in conformity with the order of authorization or approval. The motion
9shall be made before the trial, hearing
, or proceeding unless there was no
10opportunity to make the motion or the person was not aware of the grounds of the
11motion. If the motion is granted, the contents of the intercepted wire, electronic
, or
12oral communication, or evidence derived therefrom, shall be treated as having been
13obtained in violation of ss.
968.28 968.315 to
968.37 968.405. The judge may, upon
14the filing of the motion by the aggrieved person, make available to the aggrieved
15person or his or her counsel for inspection such portions of the intercepted
16communication or evidence derived therefrom as the judge determines to be in the
17interest of justice.
SB82-SSA1,143,1918
(b) In addition to any other right to appeal, the state shall have the right to
19appeal
from any of the following:
SB82-SSA1,143,2420
1.
From an An order granting a motion to suppress made under par. (a) if the
21attorney general or district attorney certifies to the judge or other official granting
22such motion that the appeal is not entered for purposes of delay and shall be
23diligently prosecuted as in the case of other interlocutory appeals or under such rules
24as the supreme court adopts
; or.
SB82-SSA1,144,4
12.
From an An order denying an application for an order of authorization or
2approval, and such an appeal shall be ex parte and shall be in camera in preference
3to all other pending appeals in accordance with rules promulgated by the supreme
4court.
SB82-SSA1,144,7
5(10) Nothing in ss.
968.28
968.315 to
968.375 968.405 shall be construed to
6allow the interception of any wire, electronic, or oral communication between an
7attorney and a client.
SB82-SSA1,503
8Section
503. Subchapter IV (title) of chapter 968 [precedes 968.305] of the
9statutes is created to read:
SB82-SSA1,144,1311
subchapter IV
12
Interception of electronic
13
communication
SB82-SSA1,504
14Section
504. 968.31 of the statutes is renumbered 968.345, and 968.345 (title),
15(1), (2) (intro.), (a), (b), (c), (e), (f), (i) and (j), (2m) (intro.), (a) and (b) and (3), as
16renumbered, are amended to read:
SB82-SSA1,144,20
17968.345 (title)
Interception and disclosure of wire, electronic, or oral
18communications prohibited. (1) Except as otherwise specifically provided in ss.
19196.63 or
968.28 968.315 to
968.30 968.335, whoever commits any of the
following 20acts
enumerated in this section is guilty of a Class H felony:
SB82-SSA1,144,2221
(a) Intentionally intercepts, attempts to intercept
, or procures any other person
22to intercept or attempt to intercept, any wire, electronic
, or oral communication.
SB82-SSA1,144,2523
(b) Intentionally uses, attempts to use
, or procures any other person to use or
24attempt to use any electronic, mechanical
, or other device to intercept any oral
25communication.
SB82-SSA1,145,5
1(c) Discloses, or attempts to disclose, to any other person the contents of any
2wire, electronic
, or oral communication, knowing or having reason to know that the
3information was obtained through the interception of a wire, electronic
, or oral
4communication in violation of this
section subsection or under circumstances
5constituting violation of this
section subsection.
SB82-SSA1,145,106
(d) Uses, or attempts to use, the contents of any wire, electronic
, or oral
7communication, knowing or having reason to know that the information was
8obtained through the interception of a wire, electronic
, or oral communication in
9violation of this
section subsection or under circumstances constituting violation of
10this
section subsection.
SB82-SSA1,145,1311
(e) Intentionally discloses the contents of any oral, electronic
, or wire
12communication obtained by authority of ss.
968.28, 968.29 968.315, 968.325, and
13968.30 968.335, except as therein provided.
SB82-SSA1,145,1514
(f) Intentionally alters any wire, electronic
, or oral communication intercepted
15on tape, wire
, or other device.
SB82-SSA1,145,16
16(2) (intro.) It is not unlawful under ss.
968.28 968.315 to
968.37
968.405:
SB82-SSA1,145,2517
(a) For an operator of a switchboard, or an officer, employee
, or agent of any
18provider of a wire or electronic communication service, whose facilities are used in
19the transmission of a wire or electronic communication to intercept, disclose
, or use
20that communication in the normal course of his or her employment while engaged
21in any activity which is a necessary incident to the rendition of his or her service or
22to the protection of the rights or property of the provider of that service, except that
23a provider of a wire or electronic communication service shall not utilize service
24observing or random monitoring except for mechanical or service quality control
25checks.
SB82-SSA1,146,3
1(b) For a person acting under color of law to intercept a wire, electronic
, or oral
2communication, where the person is a party to the communication or one of the
3parties to the communication has given prior consent to the interception.
SB82-SSA1,146,94
(c) For a person not acting under color of law to intercept a wire, electronic
, or
5oral communication where the person is a party to the communication or where one
6of the parties to the communication has given prior consent to the interception unless
7the communication is intercepted for the purpose of committing any criminal or
8tortious act in violation of the constitution or laws of the United States or of any state
9or for the purpose of committing any other injurious act.
SB82-SSA1,146,1110
(e) For any person to intercept any radio communication that is transmitted
11by any of the following:
SB82-SSA1,146,1312
1.
By any Any station for the use of the general public, or that relates to ships,
13aircraft, vehicles
, or persons in distress
;.
SB82-SSA1,146,1614
2.
By any Any governmental, law enforcement, civil defense, private land
15mobile
, or public safety communications system, including police and fire, readily
16accessible to the general public
;.
SB82-SSA1,146,1817
3.
By a A station operating on an authorized frequency within the bands
18allocated to the amateur, citizens band
, or general mobile radio services
; or.
SB82-SSA1,146,1919
4.
By any Any marine or aeronautical communications system.
SB82-SSA1,146,2020
(f) For any person to engage in any conduct that
is any of the following:
SB82-SSA1,146,2221
1.
Is prohibited Prohibited by section 633 of the communications act of 1934
;
22or.
SB82-SSA1,146,2423
2.
Is excepted Excepted from the application of section 705 (a) of the
24communications act of 1934 by section 705 (b) of that act.
SB82-SSA1,147,2
1(i) To use a pen register or a trap and trace device as authorized under ss.
968.34 2968.376 to
968.37; or 968.405.
SB82-SSA1,147,73
(j) For a provider of electronic communication service to record the fact that a
4wire or electronic communication was initiated or completed in order to protect the
5provider, another provider furnishing service toward the completion of the wire or
6electronic communication, or a user of that service, from fraudulent, unlawful
, or
7abusive use of the service.
SB82-SSA1,147,12
8(2m) (intro.) Any person whose wire, electronic
, or oral communication is
9intercepted, disclosed
, or used in violation of ss.
968.28 968.315 to
968.37 968.405 10shall have a civil cause of action against any person who intercepts, discloses
, or uses,
11or procures any other person to intercept, disclose, or use, the communication, and
12shall be entitled to recover from any such person
all of the following:
SB82-SSA1,147,1413
(a) Actual damages, but not less than liquidated damages computed at the rate
14of $100 a day for each day of violation or $1,000, whichever is higher
;.
SB82-SSA1,147,1515
(b) Punitive damages
; and.
SB82-SSA1,147,18
16(3) Good faith reliance on a court order or on s.
968.30 968.335 (7) shall
17constitute a complete defense to any civil or criminal action brought under ss.
968.28 18968.315 to
968.37 968.405.
SB82-SSA1,505
19Section
505. 968.32 of the statutes is renumbered 968.355 and amended to
20read:
SB82-SSA1,147,24
21968.355 Forfeiture of contraband devices. Any electronic, mechanical, or
22other intercepting device used in violation of s.
968.31 968.345 (1) may be seized as
23contraband by any peace officer and forfeited to this state in an action by the
24department of justice under ch. 778.
SB82-SSA1,506
25Section
506. 968.33 of the statutes is renumbered 968.365.
SB82-SSA1,507
1Section
507
. 968.34 of the statutes is renumbered 968.376, and 968.376 (1)
2and (2), as renumbered, are amended to read:
SB82-SSA1,148,53
968.376
(1) Except as provided in this section, no person may install or use a
4pen register or a trap and trace device without first obtaining a court order under s.
5968.36 968.395 or
18 USC 3123 or
50 USC 1801 to
1811.
SB82-SSA1,148,8
6(2) The prohibition of sub. (1) does not apply with respect to the use of a pen
7register or a trap and trace device by a provider of electronic or wire communication
8service
if any of the following applies:
SB82-SSA1,148,129
(a)
Relating The use relates to the operation, maintenance
, and testing of a wire
10or electronic communication service or to the protection of the rights or property of
11the provider, or to the protection of users of that service from abuse of service or
12unlawful use of service
;.