Recording Law for Police & Civil Rights in Wisconsin

Wisconsin lets you record any conversation you’re part of without telling the other person first. That’s because Wisconsin is a one-party consent state under its wiretap law, which makes it a felony to intercept a “wire, electronic, or oral communication” unless one party to the conversation has given consent. The statute’s one-party consent exception is set out in two provisions: § 968.31(2)(b) for persons acting under color of law and § 968.31(2)(c) for everyone else, with the latter excepting interceptions made “for the purpose of committing any criminal or tortious act.” The law defines “oral communication” as something spoken with an expectation it won’t be intercepted, but if you’re part of the talk, you’re that one party. Wisconsin Statutes § 968.31 makes it a felony to violate this, and the penalty is set by Wis. Stat. § 939.50(3)(h). You can also be sued for actual damages of at least $100 per day or $1,000 (whichever is greater), plus punitive damages and attorney’s fees. The key point: if you’re talking to an officer during a traffic stop or public encounter, you can record that conversation without asking permission, provided you are a party to the exchange.

You can openly record police officers while they’re on duty in a public place. A federal appeals court covering Wisconsin has ruled that openly making an audio or audiovisual recording of on-duty police performing their duties in public is protected by the First Amendment. That decision, ACLU v. Alvarez, is binding in Wisconsin because the state is in the Seventh Circuit. The court said this kind of recording does not violate an all-party consent law and doesn’t give police a free pass to interfere with your recording, but it also noted the right is not unlimited and does not immunize conduct that obstructs or interferes with police operations. So if you’re standing on a sidewalk filming an officer writing a ticket, that’s protected speech. Just don’t interfere with the officer’s work.

Recording silent video of police or anyone else in Wisconsin does not run afoul of the wiretap law. That law only covers intercepting the contents of a “wire, electronic, or oral communication.” If you’re not capturing the conversation itself—just the images—you’re not intercepting anything covered by the statute. There’s a separate invasion-of-privacy law, Wisconsin Statutes § 942.08, which applies to installing or using a surveillance device in a private place with intent to observe a nude or partially nude person. It doesn’t block general video recording of police interactions in public or even private homes unless the recording is for voyeuristic purposes.

Not every statement made near you is protected as a private “oral communication.” Wisconsin courts use a six-factor test from State v. Duchow to decide whether someone had a reasonable expectation of privacy. The factors are: (1) the volume of the statements, (2) the proximity of other individuals to the speaker, (3) the potential for the communication to be overheard or 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. If an officer shouts commands at a suspect on a busy street, those statements may fail the Duchow test and lack a reasonable expectation of privacy. But if the officer pulls someone into a back room and speaks quietly, that could change. The bottom line: whether an officer’s words have a reasonable expectation of privacy depends on the totality of the Duchow factors.

Recording inside a private home or office is governed by the same one-party-consent framework that applies everywhere. Wisconsin’s wiretap statute does not create a special rule for homes; courts still look at the Duchow factors, where location is one factor among six. If you’re a guest or resident participating in the conversation, you can record under one-party consent. If you’re a bystander recording others in someone’s home without being part of the talk, the Duchow factors weigh toward a reasonable expectation of privacy, making the law less favorable. It’s best to get advice before recording in private spaces. The safest approach is to only record when you’re directly involved in the conversation.

Imagine you’re driving and see an officer pull someone over. You pull over too, roll down your window, and start recording with your phone. The officer is giving instructions to the driver in a normal voice, and other cars are passing by. Under Wisconsin’s one-party consent rule, you can record because you are a party to the recorded exchange. The First Amendment protects your right to do this openly, provided you do not interfere with the officer’s duties. The officer’s statements are made in a public place, so they likely fail the Duchow totality-of-circumstances test for a reasonable expectation of privacy—volume is adequate, no privacy-seeking conduct is observed, and the location is open to the public. You’re not using special tech to enhance the audio. This is a clear case where recording is lawful. Just stay out of the officer’s way and don’t interfere with their duties.