Wisconsin Is One-Party Consent, So You May Record Your Own Encounter With Police

Start with what the wiretap law actually forbids. Section 968.31(1) makes it a Class H felony, punishable under § 939.50(3)(h) by a fine of up to $10,000 or up to 6 years or both, to intentionally intercept any wire, electronic or oral communication. Then § 968.31(2) lists what is not unlawful, and paragraph (c) is the one that matters to a resident with a phone: it is not unlawful "[f]or 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." That single paragraph is why Wisconsin is a one-party consent jurisdiction. If you are talking to the officer, you are a party, and you may record without telling anyone.

The carve-out has a tail. Paragraph (c) withdraws the protection where the interception is made "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." Recording to document a stop is not an injurious purpose; recording to blackmail someone is.

Filming an encounter you are not part of, from across the street, is reached by a different route. Section 968.27(12) defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation." An officer giving commands on a public sidewalk is not exhibiting that expectation, so the words are not an oral communication at all and the felony in § 968.31(1) never engages. Video without sound is outside the chapter entirely, because ch. 968 subch. IV regulates the interception of communications, not the taking of images.

Wisconsin also expressly permits scanner listening. Section 968.31(2)(e)2. says it is not unlawful to intercept a radio communication transmitted "[b]y any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public." Section 968.27(14) defines readily accessible to exclude anything scrambled or encrypted, which is the live question in Wisconsin counties that have moved dispatch to encrypted trunked systems.

There is a real enforcement lever pointed the other way, and it is not a filming ban. Section 946.41(1) makes it a Class A misdemeanor, up to $10,000 and 9 months under § 939.51(3)(a), to knowingly obstruct an officer doing an act in an official capacity and with lawful authority. Wisconsin never enacted a fixed standoff distance, so unlike Florida's 25-foot rule there is no number to measure against; the question is whether your conduct actually obstructed. Section 946.41(2)(a) also makes knowingly giving false information a form of obstruction, which is worth remembering when a recording is running.

The other half of the answer is getting the police recording. Section 165.87, added by 2019 Wis. Act 108 and amended by 2021 Wis. Act 240, requires any agency that uses body cameras to adopt and publish a written policy, train its officers, and retain body camera data for a minimum of 120 days after the date of recording under § 165.87(2)(a). Longer retention is mandatory under § 165.87(2)(b) where the recording captures an encounter that caused death or actual or alleged physical injury, a custodial arrest, a weapons frisk under § 968.25, or any use of force other than dispatching an injured wild animal; that data is kept until final disposition of the investigation, case or complaint. A preservation directive from an officer, a police and fire commission, a prosecutor, a defendant or a court must reach the custodian within 120 days of the recording under § 165.87(2)(c).

Section 165.87(3)(b) then makes body camera data subject to inspection and copying under the open records law at § 19.35(1). The privacy presumptions in § 165.87(3)(c) protect a "record subject", and § 165.87(3)(a)2.d. expressly excludes from that term "a law enforcement officer who was acting in an official capacity", unless a crime was committed against the officer at the recorded location. In plain terms, the redaction presumption that shields a crime victim or a minor does not shield the officer. Section 165.87(3)(d) makes the law enforcement agency the legal custodian, so a request goes to the department and any other authority holding the data must deny that part of the request. If access is improperly denied or over-redacted, § 165.87(3)(c)3. sends the requester to the mandamus remedy in § 19.37(1).

Recording a conversation you are a party to is not an offence in Wisconsin, so there is nothing to enforce against you. 31(1)(c) and (d). 31(2m) adds a private civil action for anyone whose communication is unlawfully intercepted, disclosed or used, recovering 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 fees and litigation costs. 31(3). 41(1) obstruction, a Class A misdemeanor of up to $10,000 and 9 months, which requires proof that the conduct actually obstructed an officer acting with lawful authority.