Recording Law for Video-Only Recording in Wisconsin

Wisconsin’s wiretap statute, Wis. Stat. § 968.31, only prohibits intercepting the contents of a "wire, electronic, or oral communication." Silent video or photos that do not capture audio do not intercept any communication’s contents, so they fall outside the scope of that law. Wisconsin has no general restriction on video-only recording in public or private spaces. The only video-related restriction is a narrow invasion-of-privacy law (Wis. Stat. § 942.08) that applies only to secretly recording nudity or sexual activity in private places, not to general incident recording.

Wisconsin is a one-party consent state for audio and audiovisual recordings that include sound. You can lawfully record a conversation you are part of without telling the other person, regardless of whether the exchange is in person or over an electronic channel. This rule is set out in two provisions: Wis. Stat. § 968.31(2)(b) (for persons acting under color of law) and § 968.31(2)(c) (for persons not acting under color of law), both of which allow interception of a "wire, electronic, or oral communication" if the person recording is a party to the communication or has consent from a party. The one-party rule applies uniformly to all such communications; silent video is not treated as an audio interception under this statute.

The only time video recording can be against the law in Wisconsin is under Wis. Stat. § 942.08, which makes it a Class A misdemeanor to install or use a surveillance device in a private place to secretly observe someone who is nude or partially nude. This law does not apply to recording disputes, altercations, or police interactions in public or private spaces unless the recording is done for the specific purpose prohibited by the statute. Otherwise, Wisconsin law does not restrict video-only recording.

The Seventh Circuit, which covers Wisconsin, has held that openly making an audio or audiovisual recording of on-duty police performing their duties in public is protected by the First Amendment. In ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), the court enjoined enforcement of an all-party-consent eavesdropping law against such recording, and its First Amendment holding is binding precedent applicable to Wisconsin. Wisconsin’s own one-party consent rule also allows you to record conversations you are part of, such as a conversation with a police officer during a stop. The right is not unlimited — the panel noted it does not immunize conduct that obstructs or interferes with police operations, and there is no Wisconsin-specific appellate case directly on point.

Violating Wisconsin’s wiretap statute by illegally intercepting audio or electronic communications is a Class H felony under Wis. Stat. § 939.50(3)(h), which carries a fine of up to $10,000, imprisonment of up to 6 years, or both. There is also a civil cause of action under Wis. Stat. § 968.31(2m), which allows the recorded person to sue for actual damages (minimum $100 per day or $1,000, whichever is greater), punitive damages, and attorney’s fees. Violating the invasion-of-privacy law (Wis. Stat. § 942.08) is a Class A misdemeanor, but only when the violation involves installing or using a surveillance device in a private place to secretly observe nudity or partial nudity.

Imagine you are attending a public protest and want to record video of the event without capturing any audio. Wisconsin law allows this without restriction because your recording is silent video only. The wiretap statute does not apply, and there is no law banning video-only recording in public. If you later share the video online or with others, you are not violating any Wisconsin recording law. However, you should still avoid secretly recording nudity or sexual activity in a private place, as that could violate the narrow invasion-of-privacy statute (Wis. Stat. § 942.08).