In the age of smart phones, it’s reasonable to assume that any moment could be captured.
Phones have long been able to record videos and now glasses can do the same. The iPhone lets users record and transcribe calls with just the tap of a button, as do other apps. But is it even legal to record a conversation in the first place — over the phone or in person?
We’ve got the answer for you.
Is it legal to record a conversation in Michigan?
It depends, said Symantha Heath, partner at the Novi-based Elkouri Heath PLC law firm, in a recent phone interview with the Free Press, which — for the record — was recorded, though a reporter didn’t have to let Heath know (though she did). Why?
Michigan is what’s called a “one-party” consent state which means it’s legal to record as long as one person taking part in the conversation consents. But recording a conversation that a person is not participating in violates the eavesdropping statute, Heath said. Violating that law is a felony punishable with a fine up to $2,000 or two years in prison. These types of cases focus on if there’s an expectation of privacy. In public settings, where there isn’t an expectation of privacy, for instance, the statute wouldn’t necessarily apply, she said.
“In Michigan, it’s OK to record if you are a party to the conversation. It is not OK if you’re not a party to the conversation,” she said.
Most states are one party consent states, Heath said. But people can run into problems if someone living in Michigan, for instance, calls someone in Florida — where all parties must generally consent to being recorded — and records the conversation. They could be violating Florida laws.
Before recording anything, people should familiarize themselves with the rules to make sure they are not violating the law. The statue — MCL Section 750.539c — at face value makes it seem like Michigan is an all party consent state, but that has been interpreted by a case called Sullivan v. Gray to mean that it’s not eavesdropping if someone is part of the conversation, Heath explained.
Technology has changed the recording landscape and begs the question of what’s OK and what’s not, said Mike Naughton, partner at the Traverse City-based North Coast Legal, who sits on the board of directors for the ACLU Michigan. It’s legal, for instance, to record law enforcement interactions on the streets — that’s public. Where it gets problematic, and a violation of someone else’s privacy, is if someone moves a dash cam to see what a neighbor is doing, he said.
“People need to be mindful of what they intend to do,” Naughton said.
Is it legal?
“Is it Legal?” is a recurring feature that publishes every Monday on freep.com that aims to help readers understand laws in Michigan and in their communities.
Do you have a question about what’s legal and what isn’t in Michigan? Email isitlegal@freepress.com and we’ll look into it for you.
Reach reporter Nushrat Rahman at nrahman@freepress.com.
This article originally appeared on Detroit Free Press: Is it legal to record a conversation in Michigan? Here’s what the law says.
Reporting by Nushrat Rahman, Detroit Free Press / Detroit Free Press
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