Michigan Evesdropping Statute – Michigan Attorney Question – Is It Illegal To Record a Private Telephone Conversation In Michigan Without The Other party Knowing?

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I have a quick question regarding recording phone calls. I have heard in the past that laws vary state to state on if you need to inform the other party that you are recording the phone conversation or not. I’m curious what I need to do legally in Michigan. We have been getting harassed from a certain individual and before proceeding to further legal matters I would like to begin recording the phone conversations. Obviously the threat of recording may mitigate some of the harassment that we are getting, however I was under the impression that in Michigan I can record the phone conversation without their knowledge. Is that accurate or was I misinformed? Thank you in advance.

Comments

  1. Peter A. Torrice on November 10, 2009 at 1:02 am said:

    Under Michigan law, any participant in a conversation may record the conversation, and it is not considered to be “eavesdropping” under the plain language of MCL 750.539a (2) because, by very definition, a participant to a private conversation who records the same is not considered to be “eavesdropping” because the conversation is not the “discourse of others” under the statute. Michigan case law is very clear on this point. See Sullivan v. Gray, 117 Mich App 476, 481, 324 N.W. 2d 58 (1982); Lewis v. LeGrow, 258 Mich App 175, 185, 670 NW 2d 675 (2003) As the Michigan Court of Appeals in LeGrow recently reaffirmed, “a participant in a private conversation may record it without ‘eavesdropping’ because the conversation is not the ‘discourse of others’ ” under the statute. Id at 185.

    However, when you record a private conversation without another party’s knowledge or consent, in Michigan that is “eavesdropping” and it is a felony for which statutory law provides civil remedies.
    MCL 750.539c; MCL 750.539d; MCL 750.539h.

    One of the relevant portions of the Michigan everdropping statute reads:

    750.539d Installation, placement, or use of device for observing, recording, transmitting, photographing or eavesdropping in private place.

    (1) Except as otherwise provided in this section, a person shall not do either of the following:

    (a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

    (b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

    (2) This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose.

    (3) A person who violates or attempts to violate this section is guilty of a crime as follows:

    (a) For a violation or attempted violation of subsection (1)(a):

    (i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

    (ii) If the person was previously convicted of violating or attempting to violate this section, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

    (b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

    (4) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate subsection (1)(a) or (b).

    So for example, if you are tape recording a conversation in Michigan between yourself and your ex-wife on the phone, or anyone else, that is perfectly legal under Michigan law because you are a participant to the conversation, and therefore are not eavesdropping. Alternatively, if you place a tape recorder in your employer’s office and record private conversations that you are not a party to, or leave a tape recorder in your ex-wife’s bedroom and pick it up later to listen to what occured while you were not there, or if you are simply quietly sitting in a room and not participating in the conversation, then you may be guilty of a felony and can to prison if convicted because you were not a participant in the conversations recorded. It is a fine line that you do not want to cross. As one of my law professors once said, whenever you are talking to someone, expect that they may be recording the conversation because it is their right to do so in Michigan.

    I hope that answered your question. Thank you for your question on http://www.AllLegalMatters.com. If you require further representation in a divorce, criminal or civil matter in Michigan, contact our law office at (586) 285-1700 for a free consultation.

    PETER A. TORRICE
    Canu Torrice Law
    http://www.AllLegalMatters.com
    (586) 285-1700

  2. Car Guy on November 10, 2009 at 3:41 pm said:

    Great info on evesdropping in Michigan and Michigan law about recording conversations from an lawyer who knows what he’s talking about. great post well written! Thanks!

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