Recording Law for Streamers & Creators in Wisconsin

Under Wisconsin Statutes § 968.31, it is lawful for a person acting under color of law or a party to a communication 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. Wisconsin does not split treatment by medium: the same one-party consent rule applies to in-person conversations, phone calls, and electronic communications alike. The Wisconsin Supreme Court in State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, explained that an "oral communication" is protected only if uttered with a reasonable expectation it is not subject to interception under circumstances justifying that expectation. If you are a participant in the exchange, you may lawfully record without the other party’s knowledge, provided the interception is not done for the purpose of committing any criminal or tortious act. This rule applies whether the conversation occurs in your home, in public, or elsewhere.

Wisconsin’s wiretap statute, Wis. Stat. § 968.31, prohibits interception of the contents of a wire, electronic, or oral communication. An "oral communication" is defined in § 968.27(12) as an utterance made with an expectation it is not subject to interception under circumstances justifying that expectation, and "intercept" means acquiring the contents of such a communication. Silent, video-only recording does not acquire the contents of an oral, wire, or electronic communication as defined, so it falls outside § 968.31 and is not restricted by that statute. However, a separate statute, Wis. Stat. § 942.08, restricts use of a "surveillance device" in narrow circumstances—installing or using such a device in a "private place" with intent to observe a nude or partially nude person without consent—so video-only recording could still implicate that law in specific voyeuristic contexts.

There is no Wisconsin statute that bars civilians from recording on-duty police officers performing their duties in public. Wisconsin’s one-party consent rule allows a person who is a party to a communication to lawfully intercept a wire, electronic, or oral communication under § 968.31(2)(b)–(c), and the Wisconsin Supreme Court’s Duchow factors often weigh against a reasonable expectation of privacy for loud, public police statements. On top of the statutory framework, federal courts covering Wisconsin protect the right to openly record on-duty police in public. The U.S. Court of Appeals for the Seventh Circuit, which includes Wisconsin, held in ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), 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 statute, its First Amendment holding is binding Seventh Circuit precedent applicable to Wisconsin. The right is not unlimited—the panel noted it does not immunize conduct that obstructs or interferes with police operations.

Wisconsin’s wiretap statute protects an "oral communication" only if it is uttered by a person 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 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. A loud public dispute or an 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. This reasonable-expectation-of-privacy requirement is built into the definition of "oral communication" itself and applies regardless of whether the wearer is a party to the exchange.

Wisconsin’s wiretap statute has no distinct, stricter statutory carve-out specifically for recording inside one’s own home; the same one-party-consent and 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 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 or using a surveillance device to observe nude or partially nude persons without consent—not general dispute or incident recording.

Imagine a streamer at a public protest who records themselves talking to a friend about the event. Because the streamer is a party to the conversation, Wisconsin’s one-party consent rule under § 968.31(2)(b)–(c) allows the recording without the friend’s knowledge, provided the interception is not done for the purpose of committing any criminal or tortious act. If the streamer also openly films a police officer giving orders nearby at normal volume, both Wisconsin’s one-party consent rule and the Seventh Circuit’s First Amendment precedent in ACLU v. Alvarez, 679 F.3d 583, protect that recording, so long as the streamer does not interfere with police operations. However, if the streamer captures a quiet argument between two protesters in a secluded corner of the crowd—where the speakers lowered their voices, moved away from others, and no bystander could naturally overhear—the Duchow totality-of-circumstances test may weigh in favor of a reasonable expectation of privacy. Recording that exchange could implicate § 968.31. The streamer should ask: is this something a bystander could naturally overhear, or is it private? If it is private, do not record it.

Wisconsin’s legal ethics rules impose additional constraints beyond the wiretap statute. The State Bar of Wisconsin’s Formal Ethics Opinion EF-24-01 (Feb. 6, 2024) holds that lawyers may not record clients without informed consent, reasoning from the fiduciary nature of the lawyer-client relationship. Recording opposing counsel or other non-client third parties without disclosure is not per se misconduct, though the opinion cautions that undisclosed recording can damage professional trust and is inadvisable as a practical matter. Recording judges, court personnel, or administrative law judges—whether in or out of court—is prohibited without the tribunal’s knowledge or permission, grounded in the judiciary’s exclusive authority to manage court proceedings. Wisconsin’s position is a bifurcated approach: it adopts ABA Formal Ethics Opinion 01-422’s permissive rule for recording opposing counsel and other third parties, while carving out categorical prohibitions for clients and judicial/court personnel.

A violation of Wisconsin’s wiretap law under § 968.31 is a Class H felony, punishable by a fine of up to $10,000, imprisonment of up to 6 years, or both, as set out in Wis. Stat. § 939.50(3)(h). In addition, § 968.31(2m) creates a private right of action allowing the recorded person to sue for actual damages of at least $100 per day or $1,000 (whichever is greater), punitive damages, and reasonable attorney’s fees.