Michigan law prohibits a person from using a device to intercept a private conversation without the consent of all the parties present. This often leads to many people asking their lawyers if it is illegal for a party of a conversation to record the conversation without the consent of the other participants present. The short answer is that it is legal.
Michigan’s eavesdropping statute (MCL 750.539c) states as follows:
- “Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.”
The use of the information obtained from the eavesdropping (MCL 750.539e) is also criminalized:
- “Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of [the eavesdropping statute) is guilty of a felony, punishable by imprisonment in a state prison not more than 2 years, or by a fine of not more than $2,000.00.”
However, the eavesdropping statute does not prohibit any of the following:
- “Eavesdropping or surveillance not otherwise prohibited by law by a peace officer of this state or of the federal government, or the officer’s agent, while in the performance of the officer’s duties.” MCL 750.539g(a).
- “Hearing a communication transmitted by common carrier facilities by an employee of a communications common carrier when acting in the course of his or her employment.” MCL 750.539g(b).
- “The recording by a public utility of telephone communications to it requesting service or registering a complaint by a customer, if a record of the communications is required for legitimate business purposes and the agents, servants, and employees of the public utility are aware of the practice or surveillance by an employee safeguarding property owned by, or in custody of, his or her employer on his or her employer’s property.” MCL 750.539g(c).
- “The routine monitoring, including recording, by employees of the department of corrections of telephone communications on telephones available for use by prisoners in state correctional facilities, if the monitoring is conducted in the manner prescribed by law.” MCL 750.539g(d).
None of these exceptions, however, apply to a person recording a phone conversation without consent. MCL 750.539a(2) clearly defines “eavesdrop” or “eavesdropping” as “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” How does one avoid running afoul of the law with being forced to make a disclosure to everyone involved?
The Michigan Court of Appeals grappled with this very issue in Sullivan v Gray, 117 Mich App 476; 324 NW2d 58 (1982). The litigation arose out of a phone conversation between the plaintiff and defendant involving negotiations over the sale of the plaintiff’s automobile dealership. The defendant recorded the entire conversation on a tape recorder. The negotiations broke down and the plaintiff subsequently sued and alleged that the defendant committed a crime by recording the phone call. The trial court granted summary disposition in favor of the defendant and found that participant recording was not prohibited by law. The plaintiff appealed and alleged the judge erred because the statute clearly relates to “[a]ny person who is present or who is not present during a private conversation.”
The Michigan Court of Appeals agreed with the trial judge.
- “We believe the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to ‘the private discourse of others’. The statute contemplates that a potential eavesdropper must be a third party not otherwise involved in the conversation being eavesdropped on. Had the Legislature desired to include participants within the definition, the phrase “of others” might have been excluded or changed to ‘of others or with others’.” Id at 481.
The Michigan Court of Appeals also rejects that “any person who is present or not present” must include participants and nonparticipants.
- “The words ‘[a]ny person who is present or who is not present’ merely acknowledge that eavesdropping may be committed by one who is actually in close physical proximity to a conversation or by one who is some distance away but eavesdrops utilizing a mechanical device. Quite plainly, one may be ‘present’ during a conversation without being a party to the conversation and without his presence being apparent to those conversing. For example, the eavesdropping party could literally be under the eaves outside an open window. This construction does lead to one anomaly. While a participant may record a conversation with apparent impunity, his sole consent is insufficient to make permissible the eavesdropping of a third party. Thus, while a participant may record a conversation, he apparently may not employ third parties to do so for him. However, this result, although incongruous on its face, is not necessarily an inconsistency. An individual may not expect those he converses with to record their discourses. Still, absent a request that discussions be held ‘off the record’, it is only reasonable to expect that a conversation may be repeated, perhaps from memory or from the handwritten notes of a party to the conversation. A recording made by a participant is nothing more than a more accurate record of what was said. Whether an individual should reasonably expect that an ostensibly private conversation will be related by a participant to third parties depends on that individual’s relation to the other participant. The individual may gauge his expectations according to his own evaluation of the person to whom he speaks. He has the ability to limit what he says based upon that expectation. When a third party is unilaterally given permission to listen in upon a conversation, unknown to other participants, those other participants are no longer able to evaluate and form accurate expectations since they are without knowledge of the third party. Therefore, it is not inconsistent to permit a person to record and utilize conversations he participates in yet deny him the right to unilaterally grant that ability to third parties.” Id at 481-482.
In sum, summary disposition was appropriate because a participant in a private conversation is not precluded from recording the dialogue. Michigan is one of thirty-eight states that have adopted the “one-party consent” law and permits a single person to record a communication he or she was a party to without the knowledge and consent of the other participants.
Michigan residents are also permitted to record phone conversations of which they are a party to under federal law. The federal eavesdropping statute (18 U.S.C. §2511(2)(d)) is also a “one-party consent” law and provides the following exception:
- “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted 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.”
If you have questions about Michigan’s eavesdropping statutes or require legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
