Is It Legal to Record a Conversation in Wisconsin?

Statute · Penalty: felony

Wis. Stat. § 968.31 ("Interception and disclosure of wire, electronic or oral communications prohibited") — part of Wisconsin's Electronic Surveillance Control Law, Wis. Stat. ch. 968, subch. IX (§§ 968.27–968.37). Definitions are in § 968.27. Penalty class cross-reference: Wis. Stat. § 939.50(3)(h) (Class H felony). Civil action: § 968.31(2m). Adjacent (narrower) statute: § 942.08 (Invasion of privacy / surveillance device), relevant only to voyeuristic/nudity recording in a "private place," not to this use case generally. Verified as current 2023-24 Wisconsin Statutes text, updated through 2025 Wis. Act 247 (published 7-1-26), on the official Wisconsin Legislature site docs.legis.wisconsin.gov.

In-person vs. phone & video calls

Wisconsin does NOT split treatment by medium. Section 968.31(2)(b) applies a single one-party-consent rule across "wire," "electronic," AND "oral" communications alike — i.e., in-person conversations, phone calls, and electronic/digital communications are all governed by the same one-party consent standard. Exact text: "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)(b)); a parallel provision, § 968.31(2)(c), extends the same one-party consent rule to persons NOT acting under color of law, EXCEPT that interception is unlawful if done "for the purpose of committing any criminal or tortious act." So: the wearer, as a participant in the recorded interaction, can lawfully record without the other party's/parties' knowledge, regardless of whether the exchange is in person or over an electronic channel, as long as it isn't done to commit a crime or tort.

Recording in public

There is no separately codified "public place exception" as such; instead, the reasonable-expectation-of-privacy requirement is built into the definition of "oral communication" itself (§ 968.27(12): an oral communication is protected only if uttered "exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation"). The Wisconsin Supreme Court in State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, articulated a totality-of-circumstances test with non-exclusive factors: (1) volume of the statements, (2) proximity of other people to the speaker, (3) potential for the communication to be overheard/reported, (4) actions taken by the speaker to ensure privacy, (5) whether technological enhancement was needed to hear the statements, and (6) the location where the statements were made. Practically, a loud public dispute or a police officer's on-duty statements made audibly in a public place will often fail this test, meaning capturing that audio may not even implicate § 968.31 at all — independent of the one-party-consent exception, which separately applies whenever the wearer is a direct party to the exchange.

Recording at home

Wisconsin's wiretap statute has no distinct, stricter statutory carve-out specifically for recording inside one's own home; the same one-party-consent / reasonable-expectation-of-privacy framework under § 968.31 and § 968.27(12) governs everywhere, home or not. If the wearer is a participant in a conversation occurring in their own home, one-party consent applies just as it would elsewhere. Recording someone else's conversation in a location (including a home) where a nonparticipant has no consent and the parties reasonably expect privacy could still trigger liability under § 968.31 (location is simply one factor in the Duchow reasonable-expectation analysis, not a categorical home/away rule). Separately, § 942.08(2)(a) (invasion of privacy) has heightened, location-based force in homes/private places, but again only reaches installing/using a surveillance device to observe nude or partially nude persons without consent — not general dispute/incident recording. Confidence is medium: I found no Wisconsin appellate decision creating a home-specific carve-out or aggravation distinct from the general framework, so this is a reasoned reading of the statutory text rather than a directly on-point case.

Recording the police

No statutory law-enforcement-specific restriction bars civilians from recording on-duty police in public. The "acting under color of law" language in § 968.31(2)(b) grants officers their OWN one-party-consent authority to record; it does not restrict citizens' ability to record officers. Because Wisconsin is a one-party-consent state, a person directly interacting with an officer (e.g., during a traffic stop) can lawfully record that exchange as a party to it; even a bystander recording an officer's public, on-duty statements is likely covered because such statements are usually made without a reasonable expectation of privacy under the Duchow factors (public place, loud/observable to bystanders, official conduct). On top of the statutory analysis, there is a First Amendment layer: Wisconsin sits in the U.S. Court of Appeals for the SEVENTH CIRCUIT (along with Illinois and Indiana). The controlling circuit precedent is ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), which held that openly making an audio or audiovisual recording of on-duty police performing their duties in public is protected First Amendment activity, and enjoined enforcement of an all-party-consent eavesdropping law against such recording. Although Alvarez arose under Illinois's (stricter, all-party) statute, its First Amendment holding is binding Seventh Circuit precedent applicable to Wisconsin, reinforcing the right to record police in public even setting aside Wisconsin's own one-party-consent rule. The right is not unlimited — the panel noted it does not immunize conduct that obstructs or interferes with police operations. I did not locate a Wisconsin-specific (as opposed to Seventh-Circuit-wide) appellate case directly on point, so treat the circuit-precedent application as strong but not Wisconsin-case-confirmed.

Video-only capture (no audio)

Silent, video-only recording (no audio) is NOT restricted by Wis. Stat. § 968.31. That statute only prohibits interception of a "wire, electronic, or oral communication"; "oral communication" is defined in § 968.27(12) as an utterance made with an expectation it is not subject to interception, and "intercept" (§ 968.27(9)) means acquisition of the CONTENTS of such a communication. Capturing only silent video does not acquire the contents of an oral, wire, or electronic communication as defined, so it falls outside this statute. Separately, Wis. Stat. § 942.08(2) (invasion of privacy) can restrict use of a "surveillance device" — which is medium-neutral and would cover video-only recording — but only in narrow circumstances: installing/using a device in a "private place" with intent to observe a nude or partially nude person, or looking into a private place for sexual arousal/gratification. It is not a general restriction on video recording of disputes, altercations, or police interactions. Confidence on this point is medium-high: it follows directly from the statutory definitions and is consistent with secondary-source treatment, but I did not find a Wisconsin appellate case squarely holding "silent video alone is categorically outside § 968.31" — the conclusion is drawn from the definitional text itself.

What counts as a “private” conversation →

Wisconsin's wiretap statute (Wis. Stat. ch. 968, subch. IX) has no separately codified "reasonable expectation of privacy" gate provision — the gate is built directly into the definition of the protected communication itself. Wis. Stat. § 968.27(12) defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation" (independently confirmed verbatim via WebFetch of docs.legis.wisconsin.gov). "Intercept" is defined in § 968.27(9) as "the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device" (also independently confirmed verbatim). The Wisconsin Supreme Court construed the "exhibiting an expectation ... circumstances justifying the expectation" language in State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913 (Wis. Sup. Ct., decided June 10, 2008, No. 2005AP2175-CR), adopting a totality-of-the-circumstances, multi-factor test with these factors: (1) the volume of the statements, (2) the proximity of other individuals to the speaker / potential for the communication to be overheard, (3) the potential for the communication to be reported, (4) actions taken by the speaker to ensure the conversation's privacy, (5) the need, if any, for technological enhancement to hear the statements, and (6) the location/setting where the statements were made. I independently retrieved the actual opinion text (not merely a secondary summary) via the Harvard Caselaw Access Project's static archive and confirmed this six-factor list is quoted verbatim from the opinion itself, along with the court's application of it (the defendant, a school-bus driver who threatened a child, was held to have no reasonable expectation of privacy because the bus was a public space, his statements were inherently likely to be reported, and he "assumed the risk of disclosure"). This is a genuine multi-factor reasonable-expectation-of-privacy gate (not a bright-line "no one else present" rule, and not a statute worded so broadly that it reaches all oral speech regardless of context) — a communication uttered under circumstances that flunk this test is not an "oral communication" at all for statutory purposes, meaning it falls outside § 968.31 entirely. Separately confirmed: the "wire communication" (§ 968.27(17)) and "electronic communication" (§ 968.27(4)) definitions contain no analogous expectation-of-privacy clause, so this gate is specific to face-to-face ("oral") communications. A face-to-face utterance must first qualify as an "oral communication" under the Duchow totality-of-the-circumstances test (volume, proximity/overhearability, likelihood of being reported, privacy-protective steps taken by the speaker, need for technological enhancement, and location) before § 968.31 applies at all; if it clears that threshold, Wisconsin's one-party-consent rule (§ 968.31(2)(b)-(c), both confirmed verbatim) means only one participating party need consent to (or actually make) the recording; if it does not clear the threshold — e.g., a loud dispute on a public sidewalk overheard by passersby — no one's consent is required because the utterance was never a protected "oral communication" in the first place. This is correctly matched to the state's actual consent_type of "one_party" as confirmed in the existing dataset row. (Note: this gate applies specifically to in-person "oral communications" under § 968.27(12); "wire" and "electronic" communications under § 968.31 are defined without an equivalent built-in expectation-of-privacy clause — independently confirmed by fetching those definitions — so phone calls and electronic communications are covered by the same one-party rule without needing to independently clear this same threshold test.)

Biometric / voiceprint law →

None. Wisconsin has no dedicated biometric privacy statute (no BIPA/CUBI/WA-style law) and no comprehensive consumer privacy law in force. The only biometric-related provision in Wisconsin law is inside the state's data-breach-notification statute, Wis. Stat. § 134.98, which folds "unique biometric data, including fingerprint, voice print, retina or iris image" into the definition of "personal information" for post-breach notification purposes only. — None imposed by Wisconsin statute. There is no written-consent requirement, no mandated public retention/destruction policy, and no opt-in requirement specific to capturing a voiceprint under current Wisconsin law. § 134.98 only obligates an entity to notify individuals if their name plus biometric data (including "voice print") is later acquired without authorization (i.e., a data breach) — it says nothing about the terms on which a voiceprint may be collected or processed in the first place. The 2025-2026 comprehensive privacy bills (SB166/AB172) would have treated biometric data as "sensitive data" requiring an opt-in consent basis (a CDPA/CPA-style regime, AG-enforcement only, no private right of action) had they passed, but both died pursuant to Senate Joint Resolution 1 on 3/23/2026 and are not in force, so they create no live obligation for live.law. Recommend defaulting the glasses/voice-enrollment flow in Wisconsin to whatever baseline (e.g., clear notice + opt-in) live.law adopts for no-statute states generally, rather than inferring a WI-specific mandate that does not exist.

Attorney ethics (ABA Formal Op. 01-422) →

Wisconsin has squarely addressed this question in a current, directly-on-point formal ethics opinion (EF-24-01, Feb. 6, 2024), independently downloaded and read in full for this verification. It replaces the committee's prior 1994 opinion (E-94-5) but largely preserves and elaborates on its substance, producing a category-based (not blanket) rule: 1. Recording NON-CLIENTS (opposing counsel, witnesses, unrepresented third parties): The committee expressly states it "agrees with ABA Formal Ethics Opinion 01-422 that nonconsensual recording of opposing counsel alone is not misconduct," and extends the same reasoning to other third parties in its "Recording Others" section (concluding "the committee does not believe that failure to disclose that a conversation with a third party is being recorded is itself misconduct"). Undisclosed recording of these people is not a per se violation of SCR 20:8.4(c), and lawyers need not proactively disclose that they are recording. The opinion does caution, citing the Arizona Ethics Advisory Committee's Opinion 95-03, that secretly recording opposing counsel can damage professional trust and working relationships and is inadvisable as a practical matter even though not misconduct (Wisconsin's opinion itself notes Arizona later modified, but did not repudiate, that 95-03 caution in a subsequent split decision, Ariz. Op. EO-20-0002, which adopted 01-422's view). If the lawyer is directly asked whether the conversation is being recorded and lies or misleads, that IS a violation (SCR 20:8.4(c) and SCR 20:4.1(a)) — matching 01-422's own caveat, and confirmed verbatim in the opinion text. 2. Recording CLIENTS: Flatly prohibited without informed consent. The committee holds, in language confirmed verbatim, that "recording clients without their knowledge and consent violates SCRs 20:1.4(b) and 20:8.4(c)," reasoning from the fiduciary/trust nature of the lawyer-client relationship rather than a general deception theory. "Informed consent" as defined in SCR 20:1.0(f) is required — the lawyer must disclose the fact of recording, its purpose, foreseeable risks, and that the client may refuse; the opinion explicitly states that a generic "this call may be recorded for quality assurance or training purposes" notice does NOT satisfy this standard. 3. Recording JUDGES, COURT PERSONNEL, and ALJs (in or out of court): Also prohibited without the tribunal's knowledge/permission, grounded in the judiciary's exclusive authority to manage court proceedings (Wis. Const. art. VII, § 2; SCR Chapter 61 governing recording devices in courtrooms; the Attorney's Oath under SCR 40.15 and SCR 20:8.4(g)) rather than in Rule 8.4(c) deception analysis alone. The committee extends the same approach to administrative law judges. Wisconsin's position is therefore correctly described as a middle ground / bifurcated approach: it affirmatively adopts ABA 01-422's permissive, non-per-se-unethical rule for recording opposing counsel and other non-client third parties, while carving out categorical, non-01-422-based prohibitions for clients and judicial/court personnel (based on fiduciary-duty and tribunal-management rationales, not a rejection of 01-422's core reasoning). This is not an overstatement — a genuine, current, primary authority squarely addresses the question and draws exactly this line. Regarding the underlying recording-consent law (kept separate from the ethics analysis, but noted because Wisconsin's own opinion explicitly conditions its analysis on it): Wisconsin is a one-party consent state for audio recording (Wis. Stat. §§ 968.27, 968.31), so nonconsensual recording generally does not violate SCR 20:8.4(b) (criminal-act misconduct). Wisconsin's evidence statute (Wis. Stat. § 885.365) separately bars use of a one-party recording as evidence in a civil case unless the recorded person was told beforehand that the call was being recorded and might be used in a proceeding — an admissibility rule the committee notes but does not conflate with the disciplinary analysis.

Can you personally sue over a violation?

Yes — this state gives a private right of action, not just criminal/regulatory enforcement.

Can I record as a guest in someone else's home?

It depends on the specifics of the moment — Wisconsin doesn't give a guest the same clear leeway a homeowner gets, so this is closer to a case-by-case call than a fixed yes or no.

What if I'm on a call with someone in another state?

Play it safe: if either state on the call requires everyone's okay to record, treat the whole call that way — don't assume Wisconsin's rule is the only one that matters just because you're the one wearing the glasses.

If it's legal to record, can it still be used against me later?

Usually, yes. Being legal to record and being protected from a future court case are two different questions — a legal recording can generally still be obtained by the other side later. That's especially true the moment a third person is present or on the line — even one extra listener can be enough to strip away legal protection here. Recording your own conversation with your own attorney is a separate, more protected situation, but almost everything else — a landlord, a police officer, a family member — isn't automatically off-limits to opposing counsel just because it was legal to capture.