Michigan recording laws overview
Michigan, like many states across the country, has laws regarding the recording of oral communications. In Michigan it is illegal to record a phone call or conversation with more than one person if the recording is made without the consent of all parties. However, Michigan is what’s known as a ‘one-party consent’ state, which can make things a little confusing.
A one-party consent state is a state law that allows for the person recording a conversation to be a participant. In other words, you don’t need permission from the person you’re engaging in conversation with to record that conversation on the principle that you are already present to hear the conversation taking place. As long as you’re present, you can do things like recording a phone call with someone else as long as you give proper notice to them that the call may be recorded ("This call may be monitored or recorded") . The use of a phone recording disclaimer would suffice, as long as it’s clear that you’re talking to the person you’re recording and you’re both present.
Where things get complicated for Michigan residents is where something like a phone call involves multiple parties. For example, if you were to record a phone conversation that involves yourself and four other people, each of the other people in the conversation would need to consent to the recording. If any of them were to say no it would be illegal to have the recording.
The alternative is for the recording to be made so that at no point was it possible for any of the other people on the phone to hear their voice. In that way only you’re recorded, and obviously that will only be done if it’s with someone you sole trust to not share your voice recording with anyone else.
Criminal and civil consequences of recording conversations
Legal Implications of Recording Conversations in Michigan
The recording of conversations without consent is a violation of Michigan law. The law is set out in MCL 750.539a. The jury instruction for the statute succinctly provides: A person, without the consent or knowledge of the other parties to the conversation, uses a device to overhear or record the conversation. [MICHIGAN STATE COURT ADMINISTRATIVE OFFICE, CRIMINAL JURY INSTRUCTIONS (CJI) CONTENTS, 750.539a.]
The statute goes on to state:
eavesdropping by means of any device is not a crime if the recording is done by:
(a) An employee or agent of a government entity while the employee or agent is in the course of his or her employment to gather public records or information and the person being recorded is a person whose communication or activities are restricted by law to public access areas.
(b) A law enforcement agency, with the consent of the other party or parties to the communication, or one of the parties to the communication is a person who makes it a practice to routinely monitor all communications through such device and who notices that the communication was not private and who in good faith believes that the communication was made only under circumstances that not all communications are private.
(c) A person employing a device in partner with a law enforcement agency, or a person acting alone, with the consent of one of the parties to the communication, for the purpose of assisting a law enforcement agency in the investigation of a criminal offense and who does neither of the following:
(1) Uses the device after being instructed in writing by a law enforcement agency to cease its use.
(2) Divulges or uses the contents of the recording for any unauthorized purpose.
It is a felony to eavesdrop. The penalty for the offense is as follows:
Except as provided in subsection (3), (4), and (5), eavesdropping is a felony punishable by imprisonment for not more than 5 years or fined $10,000.00 or both.
The law has several exceptions to part (3), (4), and (5) that provide different penalties for specific instances of recording. None of those exceptions apply here so a conviction for eavesdropping results in a 5 year felony with a $10,000 fine.
When you are allowed to legally record in Michigan
To reiterate, Michigan is a one-party consent state. That means that if you’re a party to the conversation, then you can legally record it. However, there are exceptions to this rule. For example, you can’t record a conversation to commit a crime or gain an unfair advantage (like that episode of The Office where Andy taped Angela) or for a lewd or lascivious purpose.
Another exception applies if the person being recorded has a reasonable expectation of privacy. This wouldn’t apply to a group conversation with your friends or taking a photo of an individual in a public place. However, if you’re recording in an area where the individual would reasonably expect privacy, such as their bedroom, or a bathroom any type of recording is prohibited.
And if you’re recording an attorney then know there’s an exception to the one-party consent rule. If you’re the client, the attorney can’t tape conversations they have with you (or any communications) without your consent. On the other hand, if you’re the attorney you do have the ability to record conversations with your clients without their knowledge or consent. However, this doesn’t apply to attorney-client communications that are housed in a specific statute. So if you want to tape a conversation with an employee for example, you still have to comply with laws that regulate taping and monitoring employees.
One last exception is for conversations regarding a probate proceeding. If you’re someone who’s involved in a probate estate or trust, then you can record a conversation that you are a party to without the permission of the other parties.
Taking digital footage of people and conversations in public
Michigan’s laws extend the concept of recording regulated by s. 750.540 to recording digital communications too. Phone calls are regulated under s. 750.540, and state police have opined that s. 750.540 "has been held [to] apply to video teleconferencing as well as live telephone conversations." MCL 750.540 provides that a person who "by means of any wire, cable, electromagnetism, radiation, photoelectronic signal or other method, secretly overhears or records the private discourse of another" is guilty of a felony. But s. 750.540 does not generally prohibit mutual communications made in the presence of others. That means you are not prohibited by s. 750.540 from recording a phone call with another person if they consent, or from putting your phone on video to record a public meeting where the general public is invited to attend. In fact, Martin J. Young, Michigan Attorney General, has issued an opinion stating generally that "one who is a party to a private communication will not be civilly or criminally liable for disclosing the conversation to a third party by means of publication in a newspaper" or otherwise. Op. Mich. Att’y Gen. No. 5438 (January 27 , 1976). However, the scope of Michigan’s disclosure laws is different from Michigan’s "equal authority to consent" recording laws. See, e.g., Himmel v. Michigan, 511 F.3d 784 (6th Cir. 2007) (questio[ning] whether Michigan’s wiretap law makes it a crime to film someone without their permission, and holding that the U.S. Constitution gives an individual the right to videotape public officials in the course of their official duties in a public place). A recording or disclosure made in violation of Michigan’s recording law under s. 750.540 damages are limited to the greater of $5,000 or three times the amount of actual damages. MCL 750.540(7). The concept of a reasonable expectation of privacy is important here. Even if there is no law against a recording made without the consent of one of the parties, it may still be illegal (or just simply wrong) to make a recording if the subject had a reasonable expectation that the subject’s activities were private.
Federal vs State recording laws
Michigan recording law is different from federal law in this important way: the need to comply with federal regulations addressing interstate communications. Section 2511 of Title 18 defines those federal rules and provides that states are free to enact laws which are more protective than those contained in the federal regulations. Mich. Comp. Laws § 750.539e(2).
Accordingly, if you are recording interstate phone calls, you also need to comply with relevant federal laws. Interstate communication is defined by federal law as phone calls where at least one party is located outside of the originating and the receiving state.
Whether Michigan residents have a right to record interstate calls without the consent of all parties is an open question. Michigan is one of the states in which that question has not been directly answered by its highest criminal court.
Some Michigan courts have ruled that Michigan residents need the consent of all parties in order to record interstate calls. However, some courts have also ruled that interstate calls are highly regulated by federal law, and that being forced to comply with Michigan evidence rules does not make sense in this digital era. It is unclear what the court would rule today, and may depend on the specifics of each case.
You should therefore be aware of these rules if you intend to record calls with at least one party outside of the state of Michigan.
How to legally record in Michigan
For both parties to a conversation to be legally recorded in Michigan, at least one of the participants must be aware that recording is taking place. As a result, most legal conversations should probably be recorded with both participants’ consent. However, this is not always practical, especially if a lawyer is required to have an undercover conversation with a third-party participant during discovery. For example, a lawyer might want to record an applicant during the discovery phase of an employment discrimination case to support a claim of corporate bias. To resolve this issue, the Michigan Supreme Court crafted a Judicial Administration Order – JAO 1982-3 – which permits the one-party consent of recording for discovery purposes. JAO 1982-3 provides specific Guidance for obtaining advanced consent within the context of an ongoing legal matter. This means that if you are currently involved in a lawsuit or other legal proceeding that concerns a party whose conversation is to be recorded, you should file a Consent to Recording with the circuit court to inform the covered third-party of the recording and catch them unawares during discovery. By submitting the requested consent form to the court , it is assumed by the court and all the other parties to the proceedings that such conversations may be recorded without the knowledge or consent of the participant. It is best to obtain signed consent forms from each covered participant and keep them on file for your records, in the event that the recording is later disputed as a result of a Motion for Protective Order Prohibiting Recording is filed. The covered third-party will be given to chance to challenge the admissibility of the recording in the absence of an agreed-upon stipulation to recording made as part of an ongoing legal matter. If you are not a party to the legal proceeding, it is best to obtain the consent of all participants to the conversation before the recording takes place. Try to resolve any questions regarding the legality of the recording in advance with the consent of all participants before the recording takes place – once you record a conversation that is later deemed illegal, the damage is done and the recording will probably be inadmissible in court.