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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 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 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 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.
968.375 968.375 Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider.
968.375(1)(1) Jurisdiction. For purposes of this section, a person is considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion.
968.375(2) (2)Subpoena.
968.375(2)(a)(a) Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a subpoena requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the subpoena a record or other information pertaining to a subscriber or customer of the service, including any of the following relating to the subscriber or customer:
968.375(2)(a)1. 1. Name.
968.375(2)(a)2. 2. Address.
968.375(2)(a)3. 3. Local and long distance telephone connection records, or records of session times and durations.
968.375(2)(a)4. 4. Length of service, including start date, and types of service utilized.
968.375(2)(a)5. 5. Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address.
968.375(2)(a)6. 6. Means and source of payment for the electronic communication service or remote computing service, including any credit card or bank account number.
968.375(2)(b) (b) A subpoena under this subsection may not require disclosure of the contents of communications.
968.375(3) (3)Warrant. Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a warrant requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the warrant any of the following:
968.375(3)(a) (a) The content of a wire or electronic communication that is in electronic storage in an electronic communications system or held or maintained by a provider of remote computing service.
968.375(3)(b) (b) A record or information described under sub. (2) (a).
968.375(4) (4)Basis, application for, and issuance of subpoena or warrant. Section 968.12 (2) and (3) applies to the basis and application for, and issuance of, a subpoena under sub. (2) or a warrant under sub. (3) as it applies to the basis and application for, and issuance of, a search warrant under s. 968.12.
968.375(5) (5)Manner of service. A subpoena or warrant issued under this section may be served in the manner provided for serving a summons under s. 801.11 (5) or, if delivery can reasonably be proved, by United States mail, delivery service, telephone facsimile, or electronic transmission.
968.375(6) (6)Time for service. A subpoena or warrant issued under this section shall be served not more than 5 days after the date of issuance.
968.375(7) (7)Motion to quash. The person on whom a subpoena or warrant issued under this section is served may file a motion to quash the subpoena or warrant with the judge who issued the subpoena or warrant. If the person files the motion within the time for production of records or information, the judge shall hear and decide the motion within 8 days after the motion is filed.
968.375(8) (8)Law enforcement presence not required. The presence of a law enforcement officer is not required for service or execution of a subpoena or warrant issued under this section.
968.375(9) (9)Return. A subpoena or warrant issued under this section shall be returned to the court not later than 5 days after the records or information described in the subpoena or warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the subpoena or warrant.
968.375(10) (10)Secrecy. A subpoena or warrant issued under this section shall be issued with all practicable secrecy and the request, complaint, affidavit, or testimony upon which it is based may not be filed with the clerk or made public until the subpoena or warrant has been executed and returned to the court. The judge may issue an order sealing the subpoena or warrant and the request, complaint, affidavit, or testimony upon which it is based. The judge may issue an order prohibiting the person on whom the subpoena or warrant is served from disclosing the existence of the subpoena or warrant to the customer or subscriber unless the judge subsequently authorizes such disclosure.
968.375(11) (11)Immunity. A person on whom a subpoena or warrant issued under this section is served is immune from civil liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the subpoena or warrant.
968.375(12) (12)Technical irregularities. Evidence disclosed under a subpoena or warrant issued under this section shall not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant.
968.375(13) (13)Disclosure without subpoena or warrant. A provider of electronic communication or remote computing service may disclose records or information described under sub. (2) (a) of a customer or subscriber or the content of communications of a customer or subscriber described under sub. (3) without a subpoena or warrant if any of the following applies:
968.375(13)(a) (a) The customer or subscriber provides consent for the particular disclosure.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)