Vol. 76, No. 9, September
The Scope of Wisconsin's Privacy Statute
A federal court's recent rejection of a Wisconsin Court of Appeals
decision narrowly construing the right of employee privacy compounds
uncertainty about Wisconsin's privacy protections.
Bradden C. Backer
The public and the legislators who represent it are increasingly of
two minds about privacy - desiring more in the face of technological
developments that permit intrusions formerly undreamed of and desiring
less in the face of fears spawned by terrorism and other crime.1 Since its enactment more than 25 years ago,
Wisconsin's Privacy Statute2 surprisingly
has been the source of limited judicial attention with relatively few
published court opinions providing shape to this important law.3 This comparative silence is particularly puzzling
given the substantial attention the subject of privacy has received from
the Wisconsin Legislature and U.S. Congress and heightened public
concerns about the subject.
A recent case from the U.S. District Court for the Western District
of Wisconsin - Fischer v. Mt. Olive Lutheran Church Inc.4 - shined a spotlight on the uncertainties
surrounding the scope of the Wisconsin Privacy Statute's protections by
repudiating the 1991 Wisconsin Court of Appeals decision in Hillman
v. Columbia County5 that narrowly
defined the statute's scope. This article focuses on one of the three
protections established by the Wisconsin Privacy Act and considers the
merits of the conflicting approaches of Fischer and
Hillman and their implications for the public.
The Wisconsin Privacy Statute
The roots of Wisconsin's Privacy Statute lie in a series of
pioneering academic efforts. In 1890, Louis D. Brandeis and his former
law partner authored a law review article urging recognition of the
privacy cause of action.6 This call was
answered and an analytical framework for the tort was created by the
influential teacher and author, William Prosser.7
The Wisconsin Supreme Court, however, initially declined the
invitation to recognize this cause of action, in Klug v.
Sheriffs.8 In 1936, siding with a small
minority of jurisdictions, the Wisconsin Supreme Court again reiterated
its unwillingness to recognize such a claim absent legislative
action.9 In 1951, then-state senator and
eventual governor, Warren Knowles, made the first attempt to fill this
legislative void, an effort that did not bear fruit until 1977.10
Wisconsin's Privacy Statute provides equitable relief, compensatory
damages ("based either on plaintiff's loss or defendant's unjust
enrichment"), and attorney fees for all types of invasions of privacy
recognized under the common law in other jurisdictions.11 Relying on the Restatement (Second) of
Torts,12 the legislature identified
three13 distinct, actionable invasions of
privacy: (1) "intrusion upon the privacy of another;" (2) use, without
authorization, of a living person's name or likeness for advertising or
other trade purposes; and (3) public disclosure of private facts.14 Only the first is both the subject of this
article and the source of disagreement between the Fischer and
The Wisconsin statute's protections against intrusion upon the
privacy of another "correlate to a limited degree"15 with those of its Restatement analog. Wis. Stat.
section 895.50(2)(a) makes unlawful...
"[i]ntrusion upon the privacy of another of a nature highly offensive
to a reasonable person, in a place that a reasonable person would
consider private or in a manner which is actionable for trespass."
Section 652B of the Restatement (Second) of Torts, in contrast,
avoids any mention of location in describing an unlawful intrusion on
"... intentionally intrud[ing], physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns ...
if the intrusion would be highly offensive to a reasonable person."
Judge Crabb in Fischer and the Wisconsin Court of Appeals in
Hillman essentially parted ways over whether these language
distinctions make any difference.
Private Places - The Hillman Approach
Mr. Hillman contended that officials at the state correctional
facility in which he was then incarcerated improperly opened and handled
his outside medical records in violation of Wis. Stat. section
895.50(2)(a).16 The court of appeals placed
great significance on the legislature's choice "not to use the
[Restatement] phrase 'solitude or seclusion of another or his private
affairs or concerns' to describe the area of invasion under Sec.
895.50(2)(a), Stats., but rather, 'a place[,...],'" concluding that "the
plain meaning of 'a place' is geographical."17 In essence, Hillman drew a distinction
between individuals' interests in being free from unreasonable
intrusions on their privacy in certain places and unreasonable
intrusions on the privacy of their things. Because Hillman alleged an
unreasonable intrusion upon the privacy of a thing (his medical records)
- rather than a place - the Wisconsin Court of Appeals concluded that
Hillman could not state a claim under section 895.50(2)(a).
A Focus on the Privacy Interest - The Fischer Approach
Mr. Fischer was employed by Mt. Olive Lutheran Church as its minister
of youth and children's ministries. Church staff initially
unintentionally, and then deliberately, monitored a telephone call in
which Fischer, while in the church's offices, was alleged to have been
engaged in a sexual conversation with another man while masturbating.
Fischer maintained a private email account, and later, church personnel
and its agent correctly guessed his password and then reviewed his email
to determine whether he used the email to have improper sexual
communications with minors. Fischer asserted against the church and its
staff various state common law claims, a claim of intrusion upon his
privacy and public disclosure of private facts under Wis. Stat. §
895.50(2), violations of Wisconsin's "wiretap" statute, Wis. Stat.
§ 968.31, and several claims arising under federal laws intended to
create limited privacy rights: the Electronic Communications Privacy
Act, 18 U.S.C. §§ 2510-2521; Electronic Communications Storage
Act, 18 U.S.C. §§ 2701-2711, and the Computer Fraud and Abuse
Act, 18 U.S.C. § 1030.18
Relying on Hillman, Mt. Olive Lutheran Church argued that
neither the telephone conversation nor email accounts that were the
subjects of the alleged unlawful intrusion on privacy qualified as
"places," and sought dismissal of the Wisconsin Privacy Act claim. Judge
Crabb rejected Mt. Olive's assertion and conclusion as applied to the
telephone call. Noting that Fischer was in a place when he had the
monitored telephone conversation - behind a closed door in a church
office to which he, in the past, allegedly had been directed to make
personal telephone calls - she observed that the fact that "the
defendant used a phone extension rather than pressing an ear against the
door is of no consequence."19
The court seized on a more far-reaching alternative justification for
rejecting the church's motion to dismiss the privacy claim arising from
the accessing of Fischer's email account. The court noted that, unlike
the office in which Fischer had his telephone conversation, the "email
account is analogous to the medical records file in Hillman."
Hillman accordingly would have foreclosed application of the
Wisconsin Privacy Statute to the review of Fischer's email, but Judge
Crabb refused to apply its holding, observing that she was "not
persuaded by the court of appeals reasoning in that case."20
The court offered three reasons to support the view that
Hillman was flawed. First, the district court observed that the
Privacy Statute's language, "intrusion upon the privacy of another ...
in a place that a reasonable person would consider private ... does not
limit the intrusion to a person's immediate physical
environment...."21 Second, the court
stressed the mandate of subsection (3) of the Privacy Statute - that it
"be interpreted in accordance with the developing common law of
privacy." The district court also relied on Restatement commentary and
other scholarly work22 to support the view
that privacy interests could be implicated by intrusions not only of
geographic locations. The court observed that comment b to section 652B
specifically noted that intrusion on the seclusion of an individual not
only "may be the physical intrusion into a place the plaintiff has
secluded himself" but also "may be by some other form of investigation
or examination into his private concerns, as by opening his private and
personal mail, searching his safe or his wallet, examining his private
bank account or compelling him by a forged court order to permit
inspection of his personal documents."23
The question remains, however, did the Wisconsin Legislature intend
to narrow the "unreasonable intrusion" cause of action of section 652B
of the Restatement when it used different language that spoke of
intrusions "in a place" a reasonable person would view as private?
Without explicitly answering this question, Judge Crabb correctly
interpreted subsection (3) of the Privacy Statute as suggesting that the
language differences have no significance. That provision's mandate for
an evolving interpretation of the right of privacy suggests that the
courts should not be bound by an overly formalistic approach. Indeed,
there is nothing in the "developing common law of privacy" that suggests
that peoples' things should not be entitled to protection from
The legislative history of the Privacy Statute also lends some
support for the view that differences between the Restatement language
and subsection (2)(a) are immaterial. Although shedding no light on the
reasons for those differences and failing to explain the source of the
statutory language, the bill history significantly describes the
unreasonable intrusion cause of action in terms consistent with the
Restatement and without reference to "place."24
The Legislative Council staff brief concerning the Privacy Statute
similarly speaks in the broadest terms about the importance of
protecting privacy interests: "Man's need for privacy is rooted in
biology ... as human societies evolved from communal to modern, the
emphasis upon individuality and achievement generated a new and
psychologically compelling need for privacy."25
Bradden C. Backer, U.W.
1981, is a shareholder at Godfrey & Kahn S.C., where he provides
employment and labor counsel to employers. He is coauthor of the State
Bar CLE Books three-volume Wisconsin Employment Law treatise, Hiring
& Firing in Wisconsin, and "Wisconsin
Courts Struggle with Geography in Nonsolicitation Agreements,"
Wisconsin Lawyer, February 2002. He gratefully acknowledges the
assistance of Mary J. Koshollek, librarian at Godfrey & Kahn S.C.,
and wishes to note that LaFollette, Godfrey & Kahn was legal counsel
to Mt. Olive Lutheran Church Inc., the defendant in one of the principal
cases analyzed in this article.
The Proper Protection
There is still another analytical and public policy indictment of
Hillman's narrow reading of Wisconsin's Privacy Statute - one
hinted at in Judge Crabb's rejection of the church's motion to dismiss
the privacy claim arising from the telephone monitoring: the
"thing-place" dichotomy created by Hillman ultimately rests on
an unsupportable intellectual foundation because every thing is in some
place. A phone call can be made and overheard, for example, behind
closed doors or in an elevator. A personal letter can be reviewed when
taken from a closed envelope after forcing open a locked drawer or when
it is lying exposed on a desk. Fischer's email was stored either on the
hard drive of the employer's computer or on his Internet provider's
server. And the disclosure of Hillman's medical records also occurred in
a particular place.
In the end, a person's right to be free from unreasonable intrusions
on his or her privacy should depend on the circumstances that either
shape or fail to shape a reasonable expectation of privacy. Whether the
intrusion involves interception of a communication occurring in a
particular place as opposed to information contained in a document or
other thing should not be a determinative distinction. What logical
justification could there be for providing an individual with a remedy
under the Privacy Statute for unreasonable intrusion on her privacy
when, for example, a private investigator listens outside the door of
her physician to learn facts about her medical condition, but with no
remedy when the investigator obtains the same information by perusing
her medical records?
Given the impact of technology and terror, society's concerns about
privacy are certain to both grow while, at the same moments, ebbing and
flowing. Resolving the irreconcilable tension between Hillman
and Fischer would be one small step in addressing this
ambivalence and the paucity of authority concerning the scope of the
protections afforded by Wisconsin's Privacy Statute.
1Compare Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No.
107-56, 115 Stat. 272 (2002), with Russ Feingold, "Why I
Opposed the Anti-Terrorism Bill," Counterpunch (Oct. 26, 2001)
(http://www.Counterpunch.org); Editorial, Shutting Down the
Snoops, N.Y. Times, Feb. 13, 2003; Wis. Stat. § 146.025;
Health Insurance Portability and Accountability Act of 1996, 29 U.S.C.
§ 9801 et seq.; 45 C.F.R. § 160 et seq.;
Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.;
Electronic Communications Privacy Act, 18 U.S.C. § 2510 et
seq.; Electronic Communications Storage Act, 18 U.S.C. § 2701
et seq.; Computer Fraud and Abuse Act of 1986, 18 U.S.C. §
2Right of Privacy Act, ch. 176,
§ 5, 1977 Wis. Laws 756, codified at Wis. Stat. §
3Fischer v. Mt. Olive Lutheran
Church Inc., 207 F. Supp. 2d 914 (W.D. Wis. 2002); Helland v.
Froedtert Mem'l Lutheran Hosp., 229 Wis. 2d 751, 601 N.W.2d 318
(Ct. App. 1999); Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of
Sch. Dir., 227 Wis. 2d 779, 596 N.W.2d 403 (1999); Thompson v.
National Catholic Reporter Pub. Co., 4 F. Supp. 2d 833 (E.D. Wis.
1998); Briggs & Stratton Corp. v. National Catholic Reporter
Pub. Co., 978 F. Supp. 1195 (E.D. Wis. 1997); Armada Broad.
Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994); Munson
v. Milwaukee Bd. of Sch. Dir., 969 F.2d 266 (7th Cir. 1992);
Hillman v. Columbia County, 164 Wis. 2d 376, 474 N.W.2d 913
(Ct. App. 1991); Zinda v. Louisiana Pac. Corp., 149 Wis. 2d
913, 440 N.W.2d 548 (1989); Van Straten v. Milwaukee Journal
Newspaper-Publisher, 151 Wis. 2d 905, 447 N.W.2d 105 (Ct. App.
1989); Newspapers Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d
4207 F. Supp. 2d 914 (W.D. Wis.
5164 Wis. 2d 376, 474 N.W.2d 913
(Ct. App. 1991).
6Samuel D. Warren & Louis D.
Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
7See W. Page Keeton, et
al., Prosser and Keeton on the Law of Torts § 117 (5th ed.
8129 Wis. 468, 109 N.W. 656
9Judevine v. Benzies-Montayne
Fuel & Warehouse Co., 222 Wis. 512, 269 N.W. 295
10By the time the legislation
passed in 1977, 36 states had recognized a common law or created a
statutory privacy claim. See Judith Endejan, Comment, The
Tort of Misappropriation of Name or Likeness Under Wisconsin's New
Privacy Law, 1978 Wis. L. Rev. 1034 n.32 (1978). For a review of
the legislative and academic history of the Wisconsin Privacy Statute,
see Jacqueline Hanson Dee, Comment, The Absence of False Light from
the Wisconsin Privacy Statute, 66 Marq. L. Rev. 99, 99-112 (1982),
and Endejan, supra, at 1020-35.
11Wis. Stat. § 895.50(1).
Wisconsin has never recognized a common law claim for invasion of
privacy. See Yoeckel v. Samonig, 272 Wis. 430, 434, 75 N.W.2d
12Restatement (Second) of Torts
§ 652B (1977).
13A fourth type of privacy claim
recognized by both Prof. Prosser and the Restatement - deceptive
publicity or a so-called "false light" cause of action - was deleted
from the original bill in 1977, and the Wisconsin Legislature declined
to add it in both 1979 and 1981. See Dee, supra, note
14Wis. Stat. § 895.50(2)(a),
15Zinda, 149 Wis. 2d at
16Hillman also alleged that
officials disclosed a fact - that he was HIV positive - contained in
these records. He accordingly claimed a violation of Wis. Stat.
section 895.50(2)(c) (the rejection of this claim on summary judgment
was reversed by the court of appeals) as well as a violation of his
constitutional right to privacy and negligent and intentional infliction
of emotional distress. 164 Wis. 2d at 395.
17Id. at 392.
18The court granted the
defendants' motion for summary judgment on Fischer's privacy claim for
public disclosure of private facts, the claim under the Computer Fraud
and Abuse Act, and all common law claims. The court denied the
defendants' motion for summary judgment on claims against the church and
at least one of the individual defendants under the Electronic
Communications Privacy Act, the Wisconsin "Wiretap" Act, the
unreasonable intrusion provision of the Wisconsin Privacy Act, and the
Electronic Communications Storage Act.
19Fischer, 207 F. Supp.
2d at 927. Although the court appears sound in its conclusion that "a
place" was intruded upon and not just a thing, the rather sweeping
language that suggests the manner in which that intrusion occurs is
irrelevant in analyzing one's expectation of privacy certainly appears
to advance a debatable proposition. In the more specific statutory
regulation of interception of wire communications, many legislatures
explicitly permit monitoring through use of an extension. See,
e.g., 18 U.S.C. § 2510.
Commission v. Estate of Bosch, 387 U.S. 456, 465 (1967)). The
district court observed that it "is not bound to apply and follow [the]
decisions [of a lower state court] if it believes that they would not be
affirmed by the state's supreme court." Id.
21Id. at 928.
22Id. (citing Robert D.
Sack, Sack on Defamation, Libel, Slander & Related
Problems, § 12.2.2 (3rd ed. 2001)).
23Id. Comment c to
section 652B makes the tension between its expansive view of privacy and
the restrictive approach taken in Hillman even more obvious:
"The defendant is subject to liability under the rule stated in this
Section only when he has intruded into a private place, or has
otherwise invaded a private seclusion that the Plaintiff has thrown
about his person or affairs." (Emphasis supplied.)
24"The bill specifically
authorizes four [sic] classes of actions for invasion of privacy: 1) the
intrusion upon the privacy of another which is highly offensive to the
reasonable person...." 1977 A.B. 216, analysis by the Wisconsin
Legislative Council (available in the Bill history to 1977 A.B.
25Wisconsin Legislative Council
Staff Brief 76-4, Privacy of Personal Information 1 (June 3,