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Eavesdropping in Michigan, The Participant Exception, and One-Way Consent: Where do we stand and where are we going?
Grewal Law, PLLC
(855) 610-0503

Michigan has historically been known as a one-way consent state. This means that only one person to a conversation, a participant, needs to consent to a conversations before recording the conversation. Said differently, if you are talking to another person, and you want to record the conversation, you do not need to advise the other individual that you are recording because you were a participant in the conversation and you consented. But what happens when there is more than two people involved in the conversation? The question remains were you a participant, and this is the precise question that recently brought to the Michigan Supreme Court.

Applicable Law

MCL 750.539(d) states, in pertinent part, that no person shall record a conversation, “ without the consent of the person or persons entitled to privacy in that place.”

MCL 750.539(a) provides definitions that apply to MCL 750.539(d) including a definition for “eavesdropping” that means “to overhear, record, amplify, or transmit any part of the private discourse of others.” Michigan Courts have stated that the statute intended for the potential eavesdropper to be a third party.[1] The Sullivan Court further states: “[a] recording made by a participant is nothing more than a more accurate record of what was said.”[2] As such, participants in private conversations may record those conversations.[3]

This has been the applicable standard to recording conversations for approximately forty (40) years in Michigan.

Recent Updates

In 2019, U.S. District Judge Linda Parker, in the federal district court for the Eastern District of Michigan, was required to weigh in on Michigan’s one-way consent rule. In AFT Michigan v. Project Veritas, the Court decided that it would not follow state law from published Court of Appeals decisions and instead ruled that the Federal Court was only required to follow decisions from the Michigan Supreme Court. The AFT court decided that the Michigan Supreme Court has not weighed in on the one-way consent issue and then ruled that the legislature did not intend to create one-way consent rule.

Around the time the AFT decision was reached, a different judge in the Eastern District of Michigan came to a different conclusion. The Court in Fisher v. Perron elected to follow the prodigy of case law supporting one-way consent.

As a result of these updates, and the decision in the AFT matter, Michigan Attorney General Dana Nessel asked the Michigan Supreme Court to weigh in on the issues. Judge Parker made a similar request to the Michigan Supreme Court

On May 26, 2021, the Michigan Supreme Court stated that it would not weigh in on the issues.

Where We Stand

As it stands, Michigan case law continues to support a one-way consent standard as to a participant in a conversation. What is unclear is how federal courts in the state of Michigan will rule on these recordings. The Court in AFT is the only court to have ruled that the one-way consent participant exception was not the legislatures intent. However, it is uncertain if another federal court will follow their lead. We already know the Perron Court did not elect to adopt the AFT  decision.

Any person who is recording a conversation should always be cautious as they can be held both civilly and criminally liable if the recording is illegal. Asking for the consent of the other parties is the only safe bet in recording a conversation. As a practical tip, after you obtain the other person’s consent, re-ask and re-obtain the consent to begin the recording.

 

[1]              Sullivan v. Gray, 117 Mich.App 476; 324 N.W.2d 58 (1982).

[2]               Id.

[3]              Id.

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