Chapter 968

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

968.31(2)(a) (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.

968.31(2)(b) (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.

968.31(2)(c) (c) For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

968.31(2)(d) (d) For any person to intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public.

968.31(2)(e) (e) For any person to intercept any radio communication that is transmitted:

968.31(2)(e)1. 1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles or persons in distress;

968.31(2)(e)2. 2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;

968.31(2)(e)3. 3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or

968.31(2)(e)4. 4. By any marine or aeronautical communications system.

968.31(2)(f) (f) For any person to engage in any conduct that:

968.31(2)(f)1. 1. Is prohibited by section 633 of the communications act of 1934; or

968.31(2)(f)2. 2. Is excepted from the application of section 705 (a) of the communications act of 1934 by section 705 (b) of that act.

968.31(2)(g) (g) For any person to intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference.

968.31(2)(h) (h) 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.

968.31(2)(i) (i) To use a pen register or a trap and trace device as authorized under ss. 968.34 to 968.37; or

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)(b) (b) Punitive damages; and

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 History History: 1971 c. 40 ss. 92, 93; 1977 c. 272; 1985 a. 297; 1987 a. 399; 1989 a. 56; 1991 a. 294; 1997 a. 283; 2001 a. 109.

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 agrees to the surveillance. In the prison setting, an inmate has given implied consent to electronic surveillance when the inmate 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 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, 08-0135.

968.31 Annotation When determining whether a minor has the capacity to consent to “color-of-law surveillance” under sub. (2) (b), courts should consider the totality of the circumstances to determine whether consent is voluntarily given. The court should consider the minor’s knowledge, intelligence, and maturity. It is also appropriate to consider the minor’s education and state of mind, the demeanor and tone of voice of the officers requesting consent, the location at which consent is given, and the duration of the encounter. The court should also consider the police tactics used to elicit consent and any other relevant circumstances. State v. Turner, 2014 WI App 93, 356 Wis. 2d 759, 854 N.W.2d 865, 13-2101.

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.

968.34 History History: 1987 a. 399; 1991 a. 268, 269; 1997 a. 283; 2001 a. 109.

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.

968.373 968.373 Warrant to track a communications device.

968.373(1) (1) Definition. In this section, “communications device” includes any wireless or mobile device that transmits wire or electronic communications.

968.373(2) (2) Prohibition. Except as provided in sub. (8), no investigative or law enforcement officer may identify or track the location of a communications device without first obtaining a warrant under sub. (4).

968.373(3) (3) Application for warrant. Upon the request of a district attorney or the attorney general, an investigative or law enforcement officer may apply to a judge for a warrant to authorize a person to identify or track the location of a communications device. The application shall be under oath or affirmation, may be in writing or oral, and may be based upon personal knowledge or information and belief. In the application, the investigative or law enforcement officer shall do all of the following:

968.373(3)(a) (a) Identify the communications device.

968.373(3)(b) (b) Identify, if known, the owners or possessors of the communications device.

968.373(3)(c) (c) Identify, if known, the person who is the subject of the investigation.

968.373(3)(d) (d) Provide a statement of the criminal offense to which the information likely to be obtained relates.

968.373(3)(e) (e) Provide a statement that sets forth facts and circumstances that provide probable cause to believe the criminal activity has been, is, or will be in progress and that identifying or tracking the communications device will yield information relevant to an ongoing criminal investigation.

968.373(4) (4) Warrant. A judge shall issue a warrant authorizing a person to identify or track the location of a communications device if the judge finds that the application satisfies the requirements under sub. (3). A warrant issued under this subsection may not authorize the action for a period that exceeds 60 days. A judge may extend the authorized period upon the request of the attorney general or a district attorney if the request satisfies the requirements under sub. (3). Each extension may not exceed 60 days but there is no limit on the number of extensions a judge may grant.

968.373(4m) (4m) Secrecy. A warrant under sub. (4) shall be issued with all practicable secrecy and the request, application, or other information upon which the warrant is based may not be filed with the clerk or made public until the warrant has been executed and returned to the court. The judge may issue an order sealing the application, request, or other information upon which the warrant is based. The judge may issue an order prohibiting any person who has been ordered by the judge to provide assistance to the applicant from disclosing the existence of the warrant or of the investigation to any other person unless ordered by a judge.

968.373(5) (5) Assistance. Upon the request of the attorney general, a district attorney, or a law enforcement agency authorized by a warrant issued under sub. (4) to track or identify the location of a communications device, the court shall order a provider of electronic communication service or other person to provide to an investigative or law enforcement officer information, facilities, and technical assistance to identify or track the location of the communications device. A person who is ordered under this subsection to provide assistance shall be compensated for the reasonable expenses incurred.

968.373(6) (6) Confidentiality of information.

968.373(6)(a) (a) Information obtained under this section regarding the location of a communications device is not subject to the right of inspection and copying under s. 19.35 (1).

968.373(6)(b) (b) The attorney general, a law enforcement agency, or a district attorney that obtains under this section information regarding the location of a communications device, or evidence derived from the information, shall destroy any information or evidence derived from it if the trial court reaches final disposition for all charges in connection with the investigation that was the subject of the warrant under sub. (4) and no person was adjudged guilty of a crime in connection with the investigation.

968.373(6)(c) (c) Information regarding the location of a communications device that is obtained under this section may be disclosed to other investigative or law enforcement officers.

968.373(6m) (6m) Return. A warrant issued under sub. (4) shall be returned, including in the form of a summary description of the information received, to the court not later than 5 days after the records or information described in the warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the warrant.

968.373(7) (7) Defense and immunity.

968.373(7)(a) (a) A person on whom a warrant issued under sub. (4) is served is immune from civil or criminal liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the warrant.

968.373(7)(b) (b) A person who discloses the location of a communications device under sub. (8) (b) is immune from civil or criminal liability for the acts or omissions in making the disclosure in accordance with sub. (8) (b).