The Ease of Eavesdropping

The Ease of Eavesdropping

With the incredible advances in technology, audio/visual recording and photography are easier than ever for the average citizen. But, as one of our Now You Know It readers asked, are there any legal limitations on those recordings? Is it legal to record telephone conversations via an app on your phone? What about videotaping the police?

As with other areas of the law, the statutes and court cases do not neatly keep pace with the technology. Much of what we rely on for guidance comes from wiretapping and eavesdropping statutes passed decades ago. (Michigan’s eavesdropping statute, for example, was passed by the legislature in 1966 under the heading “Telegraph and Telephone.”) Below is a brief primer on the federal and state laws governing this area.

In Michigan, eavesdropping is defined as overhearing, recording, amplifying, or transmitting the private conversation “of others without the permission of all persons engaged in the discourse.” MCL 750.539a(2). This is often referred to as a “two-party consent” law, which is somewhat misleading because you need the consent of every party to the conversation (not just two out of the five parties to a conversation, for example). Eavesdropping carries both civil and criminal penalties, meaning an individual could be sued for damages by the victim(s) and/or fined up to $2,000 and jailed for up to two years as a felon. One Michigan Court of Appeals case found that participants cannot be said to be eavesdropping on their own conversations. So, personally recording a conversation to which you are a party is not prohibited under the statute (as long as you don’t hire or ask someone else to do the recording for you). Michigan also makes it a felony to copy or use any electronic communications without authorization, so intercepting a text message or email to which you are not a party would be prohibited.

Hidden cameras are also regulated in Michigan. It is a felony to observe, record, eavesdrop on, or photograph a person in a private place where one would reasonably expect to be safe from surveillance. Filming on a public street or in a hotel lobby would be acceptable, but changing areas or bathrooms would not. This distinction is especially important for employers who wish to use surveillance on their premises.

Federal law permits recording telephone calls and in-person conversations with the consent of at least one party. In other words, you can record the conversation to which you are a party (which is similar to Michigan law) or if you have the consent of one of the parties (different than Michigan law in that Michigan requires all parties to consent, not just one). Violating federal law is a felony punishable with up to five years in prison.

It is important to be aware of both federal and state laws, as it is not always easy to know in advance which would apply. If federal law does not apply, state laws might conflict. As such, the safest route is always to get consent from all parties up front.

Police Officers and Public Officials:
Finally, what about recording the police? Recording public officials or police officers carrying out their duties in public raises First Amendment considerations, which has led a number of federal courts to protect the right to make these recordings. It is generally permissible to video or audio tape police carrying out their duties, as long as you do not interfere with their work. Additionally, the police do not have the right to confiscate or demand to view your digital photographs or video without a warrant or to delete your photographs under any circumstances. Notwithstanding, the right to record does not give someone the right to violate other laws. If someone is trespassing to get the recording, for example, she may still be liable for that trespass.

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