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Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — Reasonable Expectation of Privacy Embedded in Definition

State v. Brian Harold Duchow,  2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12).


¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law, [8] to incorporate the “reasonable expectation of privacy test” introduced in Katz v. United States, 389 U.S. 347 (1967). S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2113, 2153, 2178 (“Title III was drafted to . . . conform with Katz . . . .”). [9] Accordingly, nearly all of the federal circuit courts that have considered the definition of “oral communication” in Title III have concluded that it requires the speaker to have a reasonable, as well as a subjective, expectation of privacy. Kee v. City of Rowlett, Texas, 247 F.3d 206, 211 n.8 (5th Cir. 2001) (citing id.); United States v. Longoria, 177 F.3d 1179, 1181 (10th Cir. 1999) (citing same); In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir. 1990) (citing same); United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978) (citing same).

¶19 The legislative history of the Electronic Surveillance Control Law expressly states that the legislature intended the Electronic Surveillance Control Law to effect the state “implementation” of Title III. The Electronic Surveillance Control Law and Title III define “oral communication” using nearly identical language, which Congress intended to “reflect” the law as set out in KatzKatz explained the “reasonable-expectation-of-privacy” standard. We also explained in Smith that the Electronic Surveillance Control Law incorporated the Katz standard of reasonableness into the definition of “oral communication.” Smith, 149 Wis.  2d at 95 n.4. Furthermore, Smith is consistent with six out of seven federal circuit courts that have addressed the meaning of “oral communication” in Title III. Accordingly, we follow the overwhelming abundance of federal case law that interprets “oral communication” to incorporate a reasonable expectation of privacy, and we conclude that, in enacting Wis. Stat. § 968.27(12), the legislature did incorporate a reasonable expectation of privacy into the meaning of “oral communication.


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