Recording Law for Phone & Video Calls in Wisconsin

Wisconsin follows a one-party consent rule for audio or audiovisual communications you take part in, including phone calls, video calls, and in-person conversations. That means you can legally record the call or conversation without telling the other person or people involved. The key statute is Wisconsin Statutes § 968.31, part of the state’s Electronic Surveillance Control Law. It says intercepting a “wire, electronic or oral communication” is generally illegal, but it carves out an exception when “the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.” In plain terms, if you’re in the conversation, you’re one of the parties, so your consent is enough. This rule applies the same way whether the exchange is a regular phone call, a video call on Zoom, or an in-person discussion. The law does not require you to tell the other side you’re recording, and it does not matter whether the other side objects. However, the exception does not apply if the recording is done for the purpose of committing any criminal or tortious act.

If you record video without capturing any audio, Wisconsin’s wiretap statute does not apply. That’s because the law only restricts interception of the “contents” of a “wire, electronic, or oral communication,” and silent video does not acquire those contents. Wisconsin Statutes § 968.27 defines an “oral communication” as an utterance made with an expectation it won’t be intercepted, and “intercept” means acquiring the contents of that communication. A video-only recording simply doesn’t meet that definition. Separately, Wisconsin has a narrow invasion-of-privacy law (§ 942.08) that bans using a “surveillance device” in a private place to observe someone nude or partially nude, but that law targets voyeurism, not general video recording of disputes or public interactions.

Federal courts covering Wisconsin have ruled that openly recording on-duty police performing their duties in public is protected by the First Amendment. The Seventh Circuit, which includes Wisconsin, held in ACLU v. Alvarez that making an audio or video recording of police officers while they work in public cannot be banned under an all-party consent law. Wisconsin itself is a one-party consent state, so recording a police officer during a traffic stop or other public interaction as a party to the conversation is also lawful under state law. The Seventh Circuit cautioned that the right is not unlimited and does not cover conduct that obstructs police operations. In short, if you’re openly recording an on-duty officer in a public place, both federal and state law protect your right to do so.

Wisconsin’s wiretap law does not protect every conversation, only those uttered under circumstances that show a reasonable expectation the conversation won’t be intercepted. The Wisconsin Supreme Court spelled out a six-factor test in State v. Duchow, 2008 WI 57. The factors are: (1) the volume of the statements, (2) how close others are to the speaker, (3) how likely the conversation is to be reported, (4) whether the speaker took steps to keep it private, (5) whether technology is needed to hear it, and (6) where the statements were made. If the conversation is loud, in a public place with bystanders nearby, and the speaker doesn’t try to keep it private, it likely fails this test and isn’t protected, so recording it doesn’t violate the wiretap law. If the conversation is not protected because it lacks a reasonable expectation of privacy, the one-party consent rule is not needed to permit the recording; the statute simply does not apply. If the conversation is protected and you are a party to it, the one-party consent rule allows you to record without consent.

Wisconsin has no special rule that makes recording in a home or private office stricter than elsewhere. The same one-party consent rule and Duchow test apply everywhere. If you are part of the conversation in a private home or office, you can record without telling the others. If you are not part of the conversation and try to record people in a private space, the Duchow factors weigh toward a reasonable expectation of privacy, so the recording may not be allowed. Because no Wisconsin appellate case has squarely addressed this exact scenario, the safest approach is to treat non-party recording in private spaces as a situation where a lawyer should review the facts before proceeding.

Imagine you’re a Wisconsin employee joining a Zoom meeting with your boss and coworkers to discuss a project. You want to keep a copy for your notes. Under Wisconsin law, you can start the meeting’s built-in recording feature without telling anyone else. Because you are a party to the conversation, Wisconsin’s one-party consent rule allows it. The recording is legal even if your boss or coworkers object. If the meeting moves to a quiet corner of someone’s home and the speaker lowers their voice, the Duchow factors might weigh toward a reasonable expectation of privacy, but you are still a party to the conversation, so the one-party consent rule still applies. If you later share the recording outside the company, other laws or company policies may come into play, but the recording itself is lawful under Wisconsin’s wiretap statute.

Recording a conversation in violation of Wisconsin’s wiretap law is a Class H felony, punishable by up to six years in prison, a fine up to $10,000, or both. Wisconsin Statutes § 939.50(3)(h) sets the penalty class, and § 968.31 defines the offense. In addition, Wisconsin Statutes § 968.31(2m) creates a civil cause of action for violations. A successful plaintiff can recover actual damages of at least $100 per day or $1,000, whichever is greater, plus punitive damages and reasonable attorney’s fees.