Every so often the issue of “eavesdropping” comes up in a lawyer’s practice. Perhaps a client has recorded, or wants to record, a conversation with another party (most often a spouse, business partner or contracting party) or had their own conversation recorded by another party. Or maybe it is the lawyer who wants to record a conversation with unscrupulous opposing counsel who always seems to disavow whatever verbal agreement you had reached with him. The question that typically arises is whether recording these conversations with others is legal. This implicates Michigan’s eavesdropping statute, MCL 750.539a, and related case law with which attorneys should be familiar.
MCL 750.539a(2) defines 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.” (Emphasis added.) MCL 750.539c, makes it a felony to use devices to eavesdrop on the conversation of others:
“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.”
While MCL 750.539c sounds ominous, the Michigan Court of Appeals’ interpretation of the eavesdropping statute provides some solace, making clear that not everyone that records a conversation is a felon In Sullivan v. Gray, 117 Mich App 476, 480-481 (1982), the Michigan Court of Appeals interpreted MCL 750.539a(2) and MCL 750.539c as follows:
“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’.” (Emphasis added.)
In Swan v. Bob Maxey Lincoln Mercury, 2001 Mich App LEXIS 853 (April 24, 2001), the Court of Appeals clarified its holding in Sullivan stating: “[t]his Court has previously held that, while the eavesdrop statute is violated when a third-party records the conversation of others without the knowledge of all parties to the conversation, the statute is not violated when a participant to the conversation records the conversation, even if the other participant to the conversation is unaware that it is being recorded.” (Emphasis added.)
Thus, the person recording the conversation is a participant in the conversation, the recorder is, by definition, not “eavesdropping” on it and does not violate the statute by recording the conversation. The same holds true for other parties to the conversation who choose to record it. If, however, a person is not a participant in the conversation, and uses a “device” to “eavesdrop”, he exposes himself to criminal prosecution and punishment.
Note, this article only addresses the legality of recording of conversations between parties in Michigan and under Michigan law. The federal wiretapping statute, 18 USC §§ 2510-2520 contains its own prohibitions against the “interception” of a “wire communication” and “oral communication” under certain circumstances. Further, other states may have their own prohibitions against recording the conversations of citizens in their states.
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