968.27 Definitions. In ss. 968.28 to 968.375:

(1) “Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.

(2) “Aural transfer" means a transfer containing the human voice at any point from the point of origin to the point of reception.

(3) “Contents," when used with respect to any wire, electronic, or oral communication, includes any information concerning the substance, purport, or meaning of that communication.

(4) “Electronic communication" means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature wholly or partially transmitted by a wire, radio, electromagnetic, photoelectronic or photooptical system. “Electronic communication" does not include any of the following:

(a) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

(b) Any wire or oral communication.

(c) Any communication made through a tone-only paging device.

(d) Any communication from a tracking device.

(5) “Electronic communication service" means any service that provides its users with the ability to send or receive wire or electronic communications.

(6) “Electronic communications system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the electronic storage of those communications.

(7) “Electronic, mechanical or other device" means any device or apparatus which can be used to intercept a wire, electronic or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facilities, or any component thereof, which is:

1. Furnished to the subscriber or user by a provider of electronic or wire communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or

2. Being used by a provider of electronic or wire communication service in the ordinary course of its business, or by a law enforcement officer in the ordinary course of his or her duties.

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

(8) “Electronic storage" means any of the following:

(a) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.

(b) Any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.

(9) “Intercept" means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.

(10) “Investigative or law enforcement officer" means any officer of this state or political subdivision thereof, who is empowered by the laws of this state to conduct investigations of or to make arrests for violations of the laws that he or she is employed to enforce, and any attorney authorized by law to prosecute or participate in the prosecution of those offenses.

(11) “Judge" means the judge sitting at the time an application is made under s. 968.30 or his or her successor.

(12) “Oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. “Oral communication" does not include any electronic communication.

(13) “Pen register" means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. “Pen register" does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.

(14) “Readily accessible to the general public" means, with respect to a radio communication, that the communication is not any of the following:

(a) Scrambled or encrypted.

(b) Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication.

(c) Carried on a subcarrier or other signal subsidiary to a radio transmission.

(d) Transmitted over a communication system provided by a common carrier, including a commercial mobile radio service provider, as defined in s. 196.01 (2g), unless the communication is a tone-only paging system communication.

(e) Transmitted on frequencies allocated under 47 CFR part 25, subpart D, E or F of part 74, or part 94, unless in the case of a communication transmitted on a frequency allocated under 47 CFR part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a 2-way voice communication by radio.

(14g) “Remote computing service" means computer storage or processing that is provided to the public by means of an electronic communications system.

(15) “Trap and trace device" means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

(16) “User" means any person who or entity that:

(a) Uses an electronic communication service; and

(b) Is duly authorized by the provider of the service to engage in that use.

(17) “Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of the connection in any switching station, furnished or operated by any person in providing or operating the facilities for the transmission of intrastate, interstate or foreign communications. “Wire communication" includes the electronic storage of any such aural transfer.

History: 1971 c. 40 s. 93; 1987 a. 399; 1991 a. 39; 1997 a. 218; 2009 a. 349; 2013 a. 375; 2015 a. 196.

The constitutionality of ss. 968.27 to 968.30 is upheld. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577, 215 N.W.2d 390.

An informant who is party to a tape recorded telephone conversation also acquired the conversation in his mind, regardless of the use of tape recorder; that acquisition is not an “intercept." The informant may testify to the conversation without use of the recording. State v. Maloney, 161 Wis. 2d 127, 467 N.W.2d 215 (Ct. App. 1991).

An “oral communication" under sub. (12) is a statement uttered under circumstances in which the speaker has a reasonable expectation of privacy. An individual has a reasonable expectation of privacy when he or she has both an actual subjective expectation of privacy in the speech, and a subjective expectation that is one that society is willing to recognize as reasonable, which requires examination of the totality of the circumstances. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

Courts have identified a non-exclusive list of factors to discern whether an individual's expectation of privacy in his or her oral statements is objectively reasonable, including: 1) the volume of the statements; 2) the proximity of other individuals to the speaker; 3) the potential for the communications to be reported; 4) the actions taken by the speaker to ensure his or her privacy; 5) the need to employ technological enhancements for one to hear the speaker's statements; and 6) the place or location where the statements are made. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

That a global positioning system (GPS) tracking device did not emit any signal but rather received signals and stored data that could be retrieved later did not take it outside the meaning of a tracking device under sub. (4) (d). It is not rational to limit the admission of tracking information based on whether it is obtained in real time by a signal or at a later time by direct access to the device. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53, 08-0658.

Affirmed on other grounds. 2010 WI 92, 328 Wis. 2d 369; 787 N.W.2d 317, 08-0658.