Wisconsin Call Recording Laws: One-Party Consent

Wisconsin is a one-party consent state: you may record a phone call or conversation you take part in, or one where a participant has given prior consent, unless the purpose is criminal, tortious or "any other injurious act." Intercepting a call without any party's consent is a Class H felony.

For Wisconsin businesses, recording your own calls is lawful. Illinois, just to the south, makes a party's secret recording of a private conversation a felony, which is the main reason to announce recordings.

This is general information, not legal advice.

Wisconsin recording law at a glance

Question	Answer in Wisconsin
Consent rule	One party
Main statute	Wis. Stat. § 968.31
Can a participant record without telling others?	Yes, unless for a criminal, tortious or injurious purpose
Criminal penalty	Class H felony
Civil damages	At least $100/day or $1,000, plus punitive damages and fees (§ 968.31(2m))
Privacy test	Totality of circumstances (State v. Duchow, 2008)

What the statute says

Wis. Stat. § 968.31(1) says that, except as otherwise provided, whoever commits any of the listed acts, including intentionally intercepting a wire, electronic or oral communication and disclosing or using contents known to have been illegally intercepted, "is guilty of a Class H felony."

The private-person exception is § 968.31(2)(c):

"For a person not acting under color of law to intercept a wire, electronic or oral communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act."

Like Ohio, Iowa, New Jersey, Mississippi and Washington, DC, Wisconsin adds "any other injurious act" to the federal limits.

In-person conversations and the Duchow test

Wisconsin protects oral communications uttered with a justified expectation that they are not being intercepted (§ 968.27). In State v. Duchow (2008), according to the Reporters Committee for Freedom of the Press (RCFP), the Wisconsin Supreme Court looked at the totality of the circumstances, including:

1. the volume of the statements;
2. the proximity of others and the potential for being overheard;
3. the potential for the communications to be reported;
4. actions taken by the speaker to ensure privacy;
5. the need for technological enhancement to hear the statements; and
6. the place where the statements are made.

Applying Duchow to business settings

The Duchow factors are useful for workplaces. A conversation behind a closed office door, at normal volume, with no one else around, is likely private. A conversation shouted across a warehouse floor, with coworkers nearby, may not be. For phone calls, the factors almost always point toward privacy: callers speak at normal volume to one person, usually from a private place, and no one else could hear without technology. Treat customer and employee calls as private communications and get consent through a participant.

Texts and email

The definition of electronic communication covers "any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature." One-party consent governs intercepting texts and email.

Penalties

Violation	Statute	Classification
Intercepting, disclosing or using illegally	§ 968.31(1)	Class H felony

A Class H felony in Wisconsin carries a fine of up to $10,000, imprisonment of up to six years, or both (Wis. Stat. § 939.50).

Civil liability

Wis. Stat. § 968.31(2m) gives anyone whose communication is intercepted, disclosed or used in violation of §§ 968.28 to 968.37 a civil cause of action against anyone who did so, or procured someone else to. They can recover actual damages, but not less than liquidated damages of $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and reasonable attorney's fees and costs, according to the statute and the RCFP.

Calls between Wisconsin and neighboring states

Neighbor	Rule for phone calls
Illinois	All-party for private conversations
Minnesota	One-party
Iowa	One-party
Michigan	Disputed for participants; cautious reading is all-party

Kenosha and Racine are part of the Chicago metro, and Milwaukee businesses serve Illinois customers constantly. Illinois makes it a felony for a party to secretly record a private conversation without the other parties' consent. The Upper Peninsula border brings Michigan's unsettled rule into play too. Read interstate call recording consent and see the state-by-state table.

Three Wisconsin scenarios

A Milwaukee insurance company records claims calls with a notice. Adjusters are parties, and Illinois claimants hear the notice, so the recording is not secret.

A Kenosha contractor secretly records a call with a customer in Waukegan, Illinois. Wisconsin allows it. Illinois does not. Announce the recording.

A Madison manager installs a recorder in an employee break room. The manager is not a party, and employees there likely expect privacy under the Duchow factors. That is a Class H felony risk.

What this means for Wisconsin businesses

Manufacturing and distribution

Recorded supplier and customer calls settle disputes. Many counterparties are in Illinois. Announce recordings.

Insurance and financial services

Large service operations should play a recording notice before conversation and keep recordings under a retention schedule.

Healthcare

Recordings with patient information need access controls.

Dairy, agriculture and food processing

Wisconsin producers and processors negotiate prices, deliveries and contracts by phone with buyers across the Midwest. A recorded call helps settle disputes, and a notice at the start keeps it lawful when the buyer is in Illinois.

Employees

A signed recording and monitoring policy documents consent on your side.

Recordings from body cameras and phones

Wisconsin's rule applies to any device, including phones, body cameras and smart glasses. A field technician who records a conversation with a homeowner is a party and can consent, but a device left recording in a customer's home after the technician walks away captures a conversation the technician is no longer part of. Train field staff to start and stop recording deliberately, and to tell customers when a device is recording.

Wisconsin recording checklist

• Recording notice at the start of recorded inbound calls
• Spoken notice on outbound recorded calls, especially to Illinois
• Signed employee recording and monitoring policy
• No recording devices in break rooms or private areas
• Recordings made for legitimate business purposes only
• Callers who object are not recorded
• Access controls and retention schedule

Wording is in call recording disclosure scripts.

Recording calls in Wisconsin with Callata

With recording turned on, Callata plays "This call may be recorded." to both sides as the call connects, inbound and outbound, so Illinois callers are informed. Recordings are transcribed and summarized with sentiment and action items on the contact's history. Callata's terms keep consent-law compliance with you. Recording is included in Callata Office, which is $99 a month for up to five users and $20 a month for each additional user. Sign up.