Vol. 76, No. 9, September 2003

The Scope of Wisconsin's Privacy Statute

by 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 Hillman courts.

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 another's privacy:

"... 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

Deliberate Departure?

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 unreasonable intrusion.

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

Backer

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.

Endnotes

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. § 1030.

²Right of Privacy Act, ch. 176, § 5, 1977 Wis. Laws 756, codified at Wis. Stat. § 895.50 (2001-02).

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 179 (1979).

⁴207 F. Supp. 2d 914 (W.D. Wis. 2002).

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. 1984).

⁸129 Wis. 468, 109 N.W. 656 (1906).

⁹Judevine v. Benzies-Montayne Fuel & Warehouse Co., 222 Wis. 512, 269 N.W. 295 (1936).

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 925 (1956).

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 10.

¹⁴Wis. Stat. § 895.50(2)(a), (b), (c).

¹⁵Zinda, 149 Wis. 2d at 928.

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.

²⁰Id. (citing 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. 216).

²⁵Wisconsin Legislative Council Staff Brief 76-4, Privacy of Personal Information 1 (June 3, 1976).

Wisconsin Lawyer