AB383: Bill Text

AB383,158,8 968.325 Authorization for disclosure and use of intercepted wire, electronic, or oral communications. (1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 968.315 to 968.37 968.405 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic, or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

AB383,158,13 (2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 968.315 to 968.37 968.405 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic, or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer's official duties.

AB383,158,21 (3) (a) Any person who has received, by any means authorized by ss. 968.28 968.315 to 968.37 968.405 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic, or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 968.315 to 968.37 968.405, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.

AB383,159,4 (b) In addition to the disclosure provisions of par. (a), any person who has received, in the manner described under s. 968.31 968.345 (2) (b), any information concerning a wire, electronic, or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding described in par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.

AB383,159,7 (4) No otherwise privileged wire, electronic, or oral communication intercepted in accordance with, or in violation of, ss. 968.28 968.315 to 968.37 968.405 or 18 USC 2510 to 2520, may lose its privileged character.

AB383,159,17 (5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic, or oral communications in the manner authorized, intercepts wire, electronic, or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2). The contents and any evidence derived therefrom may be used under sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with ss. 968.28 968.315 to 968.37 968.405 or 18 USC 2510 to 2520 or by a like statute.

AB383,536 Section 536. 968.30 of the statutes is renumbered 968.335, and 968.335 (title), (1) (intro.), (b) (intro.), 1., 2. and 3. and (e), (3) (intro.), (a) and (d), (4) (intro.), (a), (b), (c) and (d), (5), (6), (7) (a) and (b), (8), (9) and (10), as renumbered, are amended to read:

AB383,160,2 968.335 (title) Procedure for interception of wire, electronic, or oral communications. (1) (intro.) Each application for an order authorizing or approving the interception of a wire, electronic, or oral communication shall be made in writing upon oath or affirmation to the court and shall state the applicant's authority to make the application and may be upon personal knowledge or information and belief. Each application shall include the following information:

AB383,160,5 (b) (intro.) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant's belief that an order should be issued, including all of the following:

AB383,160,7 1. Details of the particular offense that has been, is being, or is about to be committed;.

AB383,160,9 2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; .

AB383,160,11 3. A particular description of the type of communications sought to be intercepted; and.

AB383,160,17 (e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire, electronic, or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the court on each such application; and.

AB383,160,21 (3) (intro.) Upon the application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic, or oral communications, if the court determines on the basis of the facts submitted by the applicant that all of the following exist:

AB383,160,24 (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 968.28 968.315.

AB383,161,4 (d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic, or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.

AB383,161,6 (4) (intro.) Each order authorizing or approving the interception of any wire, electronic, or oral communication shall specify all of the following:

AB383,161,8 (a) The identity of the person, if known, whose communications are to be intercepted;.

AB383,161,11 (b) The nature and location of the communications facilities which, or the place where authority to intercept is granted and the means by which such interceptions shall be made;.

AB383,161,13 (c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;.

AB383,161,15 (d) The identity of the agency authorized to intercept the communications and of the person authorizing the application; and.

AB383,162,8 (5) No order entered under this section may authorize or approve the interception of any wire, electronic, or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with sub. (1) and the court making the findings required by sub. (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event be for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception.

AB383,162,13 (6) Whenever an order authorizing interception is entered pursuant to ss. 968.28 968.315 to 968.33 968.365, the order may require reports to be made to the court which issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court requires.

AB383,163,5 (7) (a) The contents of any wire, electronic, or oral communication intercepted by any means authorized by ss. 968.28 968.315 to 968.37 968.405 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, electronic, or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof all such recordings and records of an intercepted wire, electronic, or oral communication shall be filed with the court issuing the order and the court shall order the same to be sealed. Custody of the recordings and records shall be wherever the judge handling the application shall order. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be properly kept and preserved for 10 years. Duplicate recordings and other records may be made for use or disclosure pursuant to the provisions for investigations under s. 968.29 968.325 (1) and (2). The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic, or oral communication or evidence derived therefrom under s. 968.29 968.325 (3).

AB383,163,12 (b) Applications made and orders granted under ss. 968.28 968.315 to 968.33 968.365 together with all other papers and records in connection therewith shall be ordered sealed by the court. Custody of the applications, orders, and other papers and records shall be wherever the judge shall order. Such applications and orders shall be disclosed only upon a showing of good cause before the judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.

AB383,163,21 (8) The contents of any intercepted wire, electronic , or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in any court of this state unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.

AB383,164,13 (9) (a) Any aggrieved person in any trial, hearing , or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this state, or a political subdivision thereof, may move before the trial court or the court granting the original warrant to suppress the contents of any intercepted wire, electronic, or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. The motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic, or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of ss. 968.28 968.315 to 968.37 968.405. The judge may, upon the filing of the motion by the aggrieved person, make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice.

AB383,164,15 (b) In addition to any other right to appeal, the state shall have the right to appeal from any of the following:

AB383,164,20 1. From an An order granting a motion to suppress made under par. (a) if the attorney general or district attorney certifies to the judge or other official granting such motion that the appeal is not entered for purposes of delay and shall be diligently prosecuted as in the case of other interlocutory appeals or under such rules as the supreme court adopts; or.

AB383,164,24 2. From an An order denying an application for an order of authorization or approval, and such an appeal shall be ex parte and shall be in camera in preference to all other pending appeals in accordance with rules promulgated by the supreme court.

AB383,165,3 (10) Nothing in ss. 968.28 968.315 to 968.375 968.405 shall be construed to allow the interception of any wire, electronic, or oral communication between an attorney and a client.

AB383,537 Section 537. Subchapter IV (title) of chapter 968 [precedes 968.305] of the statutes is created to read:

AB383,165,6 chapter 968

AB383,165,9 subchapter IV Interception of electronic communication

AB383,538 Section 538. 968.31 of the statutes is renumbered 968.345, and 968.345 (title), (1), (2) (intro.), (a), (b), (c), (e), (f), (i) and (j), (2m) (intro.), (a) and (b) and (3), as renumbered, are amended to read:

AB383,165,16 968.345 (title) Interception and disclosure of wire, electronic, or oral communications prohibited. (1) Except as otherwise specifically provided in ss. 196.63 or 968.28 968.315 to 968.30 968.335, whoever commits any of the following acts enumerated in this section is guilty of a Class H felony:

AB383,165,18 (a) Intentionally intercepts, attempts to intercept, or procures any other person to intercept or attempt to intercept, any wire, electronic, or oral communication.

AB383,165,21 (b) Intentionally uses, attempts to use, or procures any other person to use or attempt to use any electronic, mechanical, or other device to intercept any oral communication.

AB383,166,2 (c) Discloses, or attempts to disclose, to any other person the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic , or oral communication in violation of this section subsection or under circumstances constituting violation of this section subsection.

AB383,166,7 (d) Uses, or attempts to use, the contents of any wire, electronic , or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this section subsection or under circumstances constituting violation of this section subsection.

AB383,166,10 (e) Intentionally discloses the contents of any oral, electronic, or wire communication obtained by authority of ss. 968.28, 968.29 968.315, 968.325, and 968.30 968.335, except as therein provided.

AB383,166,12 (f) Intentionally alters any wire, electronic, or oral communication intercepted on tape, wire, or other device.

AB383,166,13 (2) (intro.) It is not unlawful under ss. 968.28 968.315 to 968.37 968.405:

AB383,166,22 (a) For an operator of a switchboard, or an officer, employee, or agent of any provider of a wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, except that a provider of a wire or electronic communication service shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

AB383,166,25 (b) For a person acting under color of law to intercept a wire, electronic, or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

AB383,167,6 (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.

AB383,167,8 (e) For any person to intercept any radio communication that is transmitted by any of the following:

AB383,167,10 1. By any Any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;.

AB383,167,13 2. By any Any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;.

AB383,167,15 3. By a A station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or.

AB383,167,16 4. By any Any marine or aeronautical communications system.

AB383,167,17 (f) For any person to engage in any conduct that is any of the following:

AB383,167,19 1. Is prohibited Prohibited by section 633 of the communications act of 1934; or.

AB383,167,21 2. Is excepted Excepted from the application of section 705 (a) of the communications act of 1934 by section 705 (b) of that act.

AB383,167,23 (i) To use a pen register or a trap and trace device as authorized under ss. 968.34 968.376 to 968.37; or 968.405.

AB383,168,3 (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.

AB383,168,8 (2m) (intro.) Any person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of ss. 968.28 968.315 to 968.37 968.405 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 all of the following:

AB383,168,10 (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 ;.

AB383,168,11 (b) Punitive damages; and.

AB383,168,14 (3) Good faith reliance on a court order or on s. 968.30 968.335 (7) shall constitute a complete defense to any civil or criminal action brought under ss. 968.28 968.315 to 968.37 968.405.

AB383,539 Section 539. 968.32 of the statutes is renumbered 968.355 and amended to read:

AB383,168,20 968.355 Forfeiture of contraband devices. Any electronic, mechanical, or other intercepting device used in violation of s. 968.31 968.345 (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.

AB383,540 Section 540. 968.33 of the statutes is renumbered 968.365.

AB383,541 Section 541 . 968.34 of the statutes is renumbered 968.376, and 968.376 (1) and (2), as renumbered, are amended to read:

AB383,169,3 968.376 (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. 968.36 968.395 or 18 USC 3123 or 50 USC 1801 to 1811.

AB383,169,6 (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 if any of the following applies:

AB383,169,10 (a) Relating The use relates 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;.

AB383,169,14 (b) To The use is 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.

AB383,169,15 (c) Where the The consent of the user of that service has been obtained.

AB383,542 Section 542. 968.35 of the statutes is renumbered 968.385, and 968.385 (1), as renumbered, is amended to read:

AB383,169,22 968.385 (1) The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36 968.395 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.

AB383,543 Section 543. 968.36 of the statutes is renumbered 968.395, and 968.395 (1), (2) (e), (4) and (5), as renumbered, are amended to read:

AB383,170,5 968.395 (1) Upon an application made under s. 968.35 968.385, 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.

AB383,170,8 (2) (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. 968.37 968.405.

AB383,170,11 (4) Extensions of the order may be granted, but only upon an application for an order under s. 968.35 968.385 and upon the judicial finding required by sub. (1). The period of extension shall be for a period not to exceed 60 days.

AB383,170,13 (5) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that all of the following:

AB383,170,14 (a) The That the order be sealed until otherwise ordered by the court; and.

AB383,170,19 (b) The That 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.

AB383,544 Section 544. 968.37 of the statutes is renumbered 968.405, and 968.405 (1), (2), (3), (4) and (5), as renumbered, are amended to read:

AB383,171,5 968.405 (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. 968.28 968.315 to 968.37 968.405, 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. 968.36 968.395 (5) (b).

AB383,171,18 (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. 968.28 968.315 to 968.37 968.405, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device forthwith immediately 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. 968.36 968.395 (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.

AB383,171,22 (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.

AB383,172,2 (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. 968.36 968.395.

AB383,172,5 (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. 968.28 968.315 to 968.37 968.405.

AB383,545 Section 545. 968.38 of the statutes is renumbered 968.725, and 968.725 (2) (intro.), (2m) (intro.), (3) (d), (4) (intro.) and (5) (intro.), as renumbered, are amended to read:

AB383,172,15 968.725 (2) (intro.) 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 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) to (c):

AB383,172,20 (2m) (intro.) 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:

AB383,172,23 (3) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) 975.34 and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.

AB383,173,15 (4) (intro.) 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. 971.13 975.30 (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 victim or alleged victim has had contact with body fluid of the defendant that constitutes a significant exposure, the court shall 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. The test shall be performed by a health care professional. The court shall require the health care professional who performs the test to disclose the test results to the defendant, to refrain 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: