Criminal Defense Law Center
West Michigan

Is it illegal to record someone? You'll want to read this article to find out if and when it is

Is It Illegal To Record Someone

With the explosion of modern technology, people have the means to record conversations by the push of a button. People can have a cell phone in their pockets and record someone without the other person in the conversation knowing they are being recorded.  A person can have a camera in their house and record a conversation with anyone who enters their home. However, just because something is easier to do because of advances in technology, doesn’t mean the activity is legal. This article will clearly explain the situations where it is illegal to record someone and explain when someone can legally record a call or situation. 

Michigan State Law On Recording A Conversation

Yes, under certain circumstances you can record conversation in Michigan. Courts in the State of Michigan have recognized that an individual who is part of a conversation does not need the permission of other participants to record the conversation. The case law in Michigan is very clear on this point. See Sullivan v. Gray, 117 Mich App 476, 481, 324 N.W. 2d 58 (1982); Lewis v. LeGrow, 258 Mich App 175, 185, 670 NW 2d 675 (2003) As the Michigan Court of Appeals in LeGrow wrote, “a participant in a private conversation may record it without ‘eavesdropping’ because the conversation is not the ‘discourse of others’ ” under the statute. Id at 185.

The statue that is of importance regarding eavesdropping in Michigan is MCL 750.539d. This statue reads,

“Installation, placement, or use of device for observing, recording, transmitting, photographing or eavesdropping in private place.

(1) Except as otherwise provided in this section, a person shall not do either of the following:

  • Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.
  • Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

(2) This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose.

(3) A person who violates or attempts to violate this section is guilty of a crime as follows:

(a) For a violation or attempted violation of subsection (1)(a):

(i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(ii) If the person was previously convicted of violating or attempting to violate this section, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

(b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

(4) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate subsection (1)(a) or (b).”

If you are using a cellphone to record a conversation that you are not part of, you can face criminal charges. Under the Michigan Eavesdropping law, it is a felony to willfully use any device to eavesdrop a conversation without the consent of all people participating in the conversation. A person can be punished with up two years in prison and fined $2,000.00. 

If you get caught doing the same thing again, the maximum punishment goes up to five years in prison and the fine increases to $5,000.  The word “eavesdropping” means to record, overhear, transmit or amplify a conversation. It is also a felony in Michigan for a person to “use or divulge” information that was obtained through illegal eavesdropping. A person has to know the information was illegally gathered in order to be charged with this two-year felony. 

To sum up Michigan law, do not use your cellphone to amplify, overhear, record or transmit a conversation that you are not a part of if you don’t want to face being charged with a felony.  

The Federal Wiretap Act

In the 1960’s the American public was outraged about the government using secret recordings of groups engaging in political activism and various other political activities. Because of this outrage, Congress passed the Wiretap Act of 1968. (18 U.S.C. & 2510). Under this act, it is a crime to record a telephonic, electronic or oral communication that other parties reasonably expect to be private. The federal law is similar to Michigan’s law with the exceptions it grants to recording a conversation. If one person in the conversation consents to the recording or the person recording the conversation has lawful authority to do so the Wiretap Act has not been violated.

Other Laws You May Need To Worry About

There are other laws a person needs to be concerned about before they record conversations. If the phone call is crossing state lines, other state laws can come into play. These state laws carry their own criminal penalties and civil liability. A person could be sued based on several different tort theories in state courts.

Can I Use A Recorded Conversation In Court?

The exclusionary rule of the fourth amendment prevents a police officer from using illegally gathered evidence against a person facing a criminal charge. For example, if there is an illegal search and seizure, the exclusionary rule prevents this evidence from being presented to a jury. So, does this same standard apply to a private civilian?  No, the exclusionary rule is designed specifically to prevent the government from acting corruptly. The fourth amendment only prohibits the government from acting a certain way. Therefore, if a person breaks the law and records your conversation it is not going to be automatically banned from being used in court against you.

The evidence of a legally recorded conversation still needs to comply with the Rules of Evidence. Because of these rules, an illegally recorded conversation will not be allowed into evidence many times at court. The main reason for this is the restriction against hearsay evidence. Hearsay is out of court statements being used to prove the truth of the matter asserted. Here is an example of the hearsay ruling being applied: If you record you neighbor saying “I used this person’s WiFi: and want to use it as evidence that he did in fact use a person’s WiFi, you will not be allowed to use the recording.

The same issues of evidence apply to criminal cases. If you want to get in a recording on domestic violence case, you will not be violating the eavesdropping statue if you are part of the conversation. However, you still must deal with the Rules of Evidence those hurdles can be challenging. If you want to get in a recording conversation dealing with criminal sexual conduct of white collar crime, as long as you are a party to the conversation you are not engaging in criminal activity but that doesn’t mean the rules of evidence won’t keep that conversation from being used in a case.

Civil Liability

If Someone records your private conversation, can you file a lawsuit against them?

 You can file a lawsuit against them. The eavesdropping statute allows victims to file a civil lawsuit against the anyone who violates this law. Remember that the exceptions in criminal court also apply in civil court. You will not be able to file a winning lawsuit against someone who records a conversation they participated in.

Before marching into court to file a civil eavesdropping claim a person needs to consider what there is to gain?  The eavesdropping statute allows a judge to issue an injunction that prohibits a person from continued eavesdropping.  The law also allows a person to collect damages from the person who commits the tort. However, these damages will likely be very minimal. This means the cost of legal litigation could be greater than the amount of money awarded by a jury.

Is It Illegal To Record A Police Officer Or Government Official?

It seems like every day there are stories hitting the media about illegal activities by police officers and elected officials acting corruptly. Because of this, many citizens have been recording the activity of police officers and politicians to provide proof of political corruption and illegal police activity. While the meaning of these people recording politicians and police officers if good, the question remains: Is it legal?

Yes, it is but like the material covered above it depends on where the activity is taking place at.

Recording a police officer in public would fall under Michigan’s eavesdropping law that was discussed above. The key word in eavesdropping law is “private.”  In most instances, law enforcement officers do not have any expectation that their interactions with members of the public are private. Most interaction with law enforcement officers happens when an arrest is being made, a traffic ticket is being issued or some other action that is being done in public by law enforcement. Since a police officer cannot have a reasonable expectation of privacy in these cases, it is lawful for a person to record police even if the person has no connection to what the police officer is doing.

During these public interactions by law enforcement officers, it is illegal for the police to take or try to take away a person’s phone, video or photos they have taken. They are not allowed to tamper with photos, phones or videos in any way. The only way a police officer could do this is by a warrant. If you are having your phone taken away from you by law enforcement they will have to provide you with the warrant that will be signed by a judge or a magistrate and it will clearly say what they are being allowed to take and search.

It is illegal to record a police officer on the private property of another person. A citizen who is asked to move away from a situation they are recording should do so. Escalating a situation is not advisable.

A person may record a conversation on private property if they are part of the conversation. If a person has been given to consent to record a conversation it will always be legal to do so. The bottom line is that the legality of recording a police officer depends on where the recording is taking place at and if the police officer has a reasonable expectation of privacy at the time of the recording.

It is unreasonable for a police officer to expect privacy at a bus station that is crowded. If they are on private property and no one else is around, then the law enforcement officer can expect privacy. In theory, an officer in a public park that is empty or has few people around could also expect privacy. If you wish to record a police officer always remember to Michigan’s recording laws are based on the expectation of privacy, consent and if a party is part of the conversation.

The same principles apply to a political figure. A mayor has no expectation of privacy speaking at a public event. However, if you are in his office and there is no one else around and you record the conversation, the mayor has a strong argument about having an expectation of privacy, So if you plan on doing a recording in an office, please seek permission for the political figure first to make sure you are not violating Michigan’s eavesdropping law.

Penalties

The penalty for illegally recording a police officer is up to two years in prison and a fine of $1,000. A conviction for illegally recording a police officer and political figure is a felony.

If you have any questions related to recording a conversation or recording interactions with a police officer or a public official, please call me now at 616-438-6719! I will be happy to talk with you about the situation and answer any questions you may have.

Get A Free Case Strategy Session