If you are in an argument with a spouse, co-worker, or another person can you record it?
Michigan is a one-party consent state for recording verbal conversations. As long as the person recording (“recorder”) is also a participant to the conversation, the recorder may record the conversation with “apparent impunity.” You may not employ a third-party to record a conversation. That would constitute eavesdropping.
If the communications are electronic communications (such as emails, text messages, Facebook Messenger messages), how the communication is collected determines if collection was appropriate or not. If the recorder is a recipient or party to the electronic communication, storing that communication is proper. It is illegal, however, to access another person’s electronic communications without authorization or exceeding valid authorization.
The term “eavesdrop” is defined as “to overhear, record, amplify, or transmit any part of the private discourse of others without the permission of all persons engaged in the disclosure.” MCL 750.539a(2). Michigan makes eavesdropping a punishable felony under MCL 750.539c. This statute provides, in pertinent part:
Any person who is present or who is not present during a private conversation and who willfully 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.
Our Michigan Supreme Court, in People v. Stone, went through an analysis to define the phrase “private conversation. 463 Mich. 558, 621 NW2d 702 (2001). The Court began by defining a “private place” as “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.” MCL 7503539a(1). The Court extrapolated that a “private conversation” must mean “a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance.” People v. Stone, supra. The Court buttressed this definition by relying on its decision in Dickerson v. Raphael, where it stated that “whether a conversation is private depends on whether the person conversing ‘intended and reasonably expected that this conversation was private.’” 461 Mich 851 (1999).
The Court conceded that its definition of “private conversation” tracks with the standards adopted by the United States Supreme Court in Fourth Amendment cases involving law enforcement actively seeking to detect criminal behavior. Katz v. United States, 389 US 347 (1967)(Harlan, J.). The Court instructed that its definition of “private conversation” originates from Michigan’s eaves dropping statutes which, by their terms, do not apply to law enforcement operating within their lawful activity. MCL 750.539g(a).
Sullivan v. Gray: Genesis of One-Party Consent
Nearly 40 years ago the Michigan Court of Appeals, in Sullivan v. Gray, held that the consent of only one party involved in a conversation is required to lawfully record a conversation. 117 Mich App 476, 482-483; 324 NW2d 58 (1982). The Court
As recently as this year, a federal district court in Detroit certified a question to the Michigan Supreme Court regarding whether MCL 75059a and 750.539c prohibit a party to a conversation from recording the conversation absent the consent of all other participants. The Supreme Court declined the request to answer the certified question. Accordingly, Sullivan stands as good law. In re: Certified Question from the United States District Court of Michigan, Southern Division, Docket Number 162121, May 26, 2021.
Is Recording Impunity Limitless? No.
What about a participant of a conversation recording a location, such as with a doorbell camera or audio/video security equipment? Initially, an important component involves whether one of the parties to the conversation consented to the recording of the conversation. Critical to this analysis is whether the party was “involved in the conversation.”
The recording of video and/or audio of a premise would not comprise being “involved in the conversation.” Rather, one would have to intentionally begin and end the recording for the purposes of a specific conversation. An individual may run afoul of the criminal penalty for eavesdropping if he or she was recording private conversations in locations where one would have a reasonable expectation of privacy.
DEFINING THE GREY AREAS
Eavesdropping comes in many forms: audio; video; email; text message; instant message; Facebook Messenger; Snapchat; Signal; Telegram; Siri; Google Assistant; Alexa
It is not legal for an individual to access another person’s electronic communications without consent. MCL 752.795
A person shall not intentionally and without authorization or by exceeding valid authorization do any of the following:
(a) Access or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.
(b) Insert or attach or knowingly create the opportunity for an unknowing and unwanted insertion or attachment of a set of instructions or a computer program into a computer program, computer, computer system, or computer network, that is intended to acquire, alter, damage, delete, disrupt, or destroy property or otherwise use the services of a computer program, computer, computer system, or computer network. This subdivision does not prohibit conduct protected under section 5 of article I of the state constitution of 1963 or under the first amendment of the constitution of the United States.
The method of collection electronic communications determines whether such collection is legal or not. If an individual is part of an electronic communication thread, then storing that communication is appropriate. However, if an individual accesses another person’s computer (phone, tablet) to gather communication data, such collection is inappropriate under the law.
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