Unauthorized Recordings – Eavesdropping

Perhaps you have wanted to record a phone conversation or video tape someone in your house, and wondered whether this is permitted by law. Alternatively, perhaps you have been the subject of unauthorized recordings, and want to know your rights.

THE LAW:

The federal law is codified at 18 USC 2510, et seq.  The federal law provides for a 5-year felony for recording telephone conversations except in cases in which the state allows only one person to the conversation to consent.

Michigan’s statutory law is codified at MCL 750.539c.

MCL 750.539c provides for a 2-year felony / $2,000.00 fine for willfully recording a conversation without each party’s consent — EAVESDROPPING — meaning:  NOT a party to the conversation.

Under 750.539d, it is also a crime to video record or photograph a person in a “private place”, without the person’s consent. A private place is one in which the individual has a reasonable expectation of privacy and as such, a place to which the public also has access is not a private place. Accordingly, dissemination of prohibited recordings is also a violation of law with a 5-year felony / $5,000.00 as punishment.

There are exceptions to the law for residences monitored for security purposes unless the monitoring is conducted for a lewd or lascivious purpose (MCL 750.539d(2)) and this would come with a 2 year felony / $2,000.00 fine which is aggravated for previous convictions. Police officers on duty, common carriers, public utilities, and state correctional facilities are also excepted under the law. (MCL 750.539g)

If you have been recorded and want to pursue the matter in court, the civil remedy is codified at 750.539h. You may request an injunction by a court of record prohibiting further eavesdropping, actual damages against the person who eavesdrops, and punitive damages as determined by the court or by a jury.

Michigan’s common law applies:

In Michigan, we turn attention on the participation involved in the private conversation. If you are personally participating in the conversation, then you will benefit from Michigan’s one-party consent rule. This is because participants cannot eavesdrop on their own conversations. See Sullivan v. Gray, 117 Mich. App. 476 (1982), in which the Michigan Court of Appeals ruled that the eavesdropping statute does not apply to a participant in a private conversation, because eavesdropping is defined as the overhearing or recording of “the private discourse of others.”

For further analysis, consider:  People v Stone, 463 Mich 558, 563; 621 NW2d 702, 704 (2001), Dickerson v Raphael, 222 Mich App 185, 193; 564 NW2d 85, 89 (1997) rev’d on other grounds 461 Mich 851 (1999)

 

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