Unauthorized Recording

Perhaps you have wanted to record a phone conversation or video taped someone in your house, and wondered whether this is permitted by law. Alternatively, perhaps you have been the subject of an unauthorized video or telephone recording, and want to know your rights. Both the federal law and Michigan law apply. The federal law is codified at 18 USC §2510 et. seq, while Michigan law is codified at MCL §750.539c 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 MCL §750.539c provides for a 2-year felony / $2,000.00 fine for willfully recording a “private conversation” without each party’s consent. 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. See MCL §750.539g.

In Michigan, we turn attention on the participation involved in the private conversation. If you are personally participating in the conversation, then you may benefit from Michigan’s one-party consent rule. The notion that participants cannot eavesdrop on their own conversations was presented in 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.”

If you have been recorded and want to pursue the matter in court, look to 18 USC § 2520 for federal recovery of civil damages; and to MCL §750.539h at the state level. 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.

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