Is Wisconsin a one-party consent state?

Wis. Stat. § 968.31(2)(c) permits interception by a non-state actor who is a party or has one party's consent. Wire, electronic and oral are covered, so in-person conversations are inside, and RCFP reports the same rule for wireless communications including text messages.

The oral branch requires a reasonable expectation of privacy, and RCFP describes Wisconsin courts applying a totality-of-the-circumstances test weighing volume, the proximity of others and the potential to be overheard, steps taken to protect privacy, whether technological enhancement was needed, and location, citing State v. Duchow, 749 N.W.2d 913 (Wis. 2008).

Wisconsin's one-party exception is narrower than the federal one. § 968.31(2)(c) withdraws it where the communication is intercepted to commit any criminal or tortious act "or for the purpose of committing any other injurious act". That final clause has no federal counterpart. Its scope was narrowed in State v. Maloney, 2005 WI 74, which held an informant who volunteers to aid a lawful investigation does not commit an injurious act merely by participating.

Nothing needs to be said by a participant, but Wisconsin has the most useful in-state authority in this survey on what consent means when it is implied rather than spoken.

The official annotation to § 968.31 states: "Consent under sub. (2)(b) may be express or implied in fact from surrounding circumstances indicating that the person knowingly agrees to the surveillance. In the prison setting, an inmate has given implied consent to electronic surveillance when the inmate has meaningful notice that a telephone call is subject to monitoring and recording and nonetheless proceeds with the call", citing State v. Riley, 2005 WI App 203.

Meaningful notice plus proceeding. That is the test worth designing any notice script against, in any state, and it is why "I am recording this" is materially stronger than "this call may be recorded".

And notice matters to usability even where it does not matter to legality. § 885.365(1) makes a recording "totally inadmissible" in a civil case unless the party was informed the conversation was being recorded and that the evidence might be used in court. So a lawful one-party recording in Wisconsin can still be worthless as evidence.

§ 968.31(1): "whoever commits any of the acts enumerated in this section is guilty of a Class H felony", covering interception, use of a device to intercept an oral communication, and disclosure or use of contents known to be unlawfully obtained. We did not source the term of years and fine attaching to a Class H felony.

Private right of action under § 968.31(2m): actual damages "but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher", punitive damages, and a reasonable fee and litigation costs. Good-faith reliance on a court order is a complete defence under § 968.31(3).

Being one of the people in the conversation answers the question for Wisconsin. It does not answer it for whoever is on the other end. No rule settles which state's law applies when the participants are in different places, more than one may apply at once, and courts have reached opposite results on comparable facts. If anyone on the call might be in an all-party state, the safe posture is theirs rather than yours. The general problem is on the US overview.

Nothing in Wisconsin law requires you to say anything, which is a different thing from it being a good idea. The reason to announce it anyway is the person on the other end of the call, who may be somewhere stricter, and the reason to ask rather than tell is that it puts an answer on the record instead of an assumption.

I'm recording this for notes, stored on my machine only. Any objection?

Then leave a beat. Longer versions, and what to do when someone says no, are on telling people you're recording.

Earkeep records continuously and announces itself to nobody: no bot in the participant list, no banner on anyone else's screen. In a one-party state that is legally unremarkable, and it is still the reason nobody in the room knows unless you say so.

The controls exist for when somebody would rather you didn't. A pause from the live edge releases the microphone and the system audio stream, so your operating system's own recording indicator goes dark and the person who asked can watch it happen rather than take your word for it. A meeting on a connected calendar can be marked never-record. And a stretch of the day, or a saved meeting with its transcript, can be purged: the lines come out of the file on your own disk and nothing is written in their place, with no server copy to reconcile against because there is no server.

None of that makes a recording lawful anywhere, and the audio never leaving your device is not an answer to a consent statute. It is a good answer to "where does this go", which is usually the question the room actually has.

• Wis. Stat. § 968.31 (official, with annotations)
• RCFP, Reporter's Recording Guide: Wisconsin
• Congressional Research Service R41733
• Kilpatrick 50-state wiretap chart, July 2024

• US recording laws, state by state: the federal baseline, the cross-border problem, and all 51 jurisdictions.
• Telling people you're recording: the scripts, and the three ways to stop.
• Private by design: why the audio never leaves your computer.

This page is legal information, not legal advice. It summarises statutes and cases rather than replacing them, and we are not lawyers. If the answer matters, ask someone who can be held to their answer.