I am looking for proof in the form of citable Michigan state AND
federal law code regarding phone conversation recording.  I know it is
illegal to record a phone conversation if the person recording is not
one of the parties in the conversation, but I believe that it is legal
(both state and federally) if the person recording is a party in the
conversation.  I further believe that the person recording the
conversation is not obligated to give notice that the call is being
recorded, but I also need proof of that at a state and federal level.

I need links to all of the applicable laws from state of Michigan or
federal websites.

---

Clarification of Question by gpssysop-ga on 04 Dec 2004 18:26 PST

Please make sure that all laws cited are the most current available
and have not been replaced by any other legislation.

Dear gpssysop-ga;

Thank you for allowing me an opportunity to answer your interesting
question. As you know this forum cannot, by policy provide legal
advice. I am merely pointing out what my research has revealed about
published law.

You will not find "proof" that the law supports your understanding of
the law. What you will find instead is that your assumption about the
law allowing one to record a conversation to which he is a part
without the knowledge or consent of the other party in the State of
Michigan is mistaken. It is indeed illegal in that state in all
instances and under all conditions for a non-law enforcement related
individual acting in an official capacity to record a telephone
conversation unless EVERYONE in the conversation gives verbal or
written consent. Even under Federal law, which permits certain
exemptions when criminal activity if afoot as long as state law is not
restrictive against it, it is still illegal. I?ll go into that a bit
more in a moment. Let me explain:


?The federal law makes it unlawful to record telephone conversations
except in one party consent cases which permit one party consent
recording by state law. What that means is a person can record their
own telephone conversations without the knowledge or consent of the
other party in those states THAT ALLOW ONE PARTY CONSENT.

It's important to understand the difference between what has become
known as ?one party? consent and ?two party? or ?all party? consent.
?One party consent? simply means that one party to the conversation
must have knowledge and give consent to the recording. ?Two party? or
?all party? consent means that EVERY PARTY to the conversation must
have knowledge and give consent to the recording.?

COVERTLY RECORDING TELEPHONE CONVERSATIONS
http://www.pimall.com/nais/n.recordlaw.html


There are twelve states that require ?all party consent? and Michigan
is one of them.

In the absence of more restrictive state law, it is permissible under
Federal law to intercept and record a telephone conversation if one or
both of the parties to the call consents (as long as the tape is not
made for a tortious, criminal or otherwise illegal purpose such as
blackmail). Consent means authorization by only one participant in the
call; single-party consent is provided for by specific statutory
exemption under federal law. 18 U.S.C. Sec. 2511(2)(d). HOWEVER, the
State of Michigan clearly DOES have a more restrictive law so this
exception is a moot point in that state. In other words, in the State
of Michigan, unlike some other states perhaps, one cannot use 18
U.S.C. Sec. 2511(2)(d) as his defense for violating state law.

?The federal statutes provide criminal penalties for unlawful
interception of telephone conversations, including up to five years'
imprisonment or a maximum of $10,000 in fines. They also allow for
civil remedies, by which private parties are entitled to recover
actual and punitive damages, together with fees and costs. Violations
of the Electronic Communications Privacy Act may also qualify for an
award of minimum statutory damages of $10,000 per violation.?
BRETT WEISS, PC
?SURREPTITIOUS RECORDING OF TELEPHONE CONVERSATIONS FAQ?
http://members.aol.com/interlaw/phon_faq.htm


The pertinent statutes you are looking for are:

FEDERAL

18 USC 2510, et seq, The Electronic Communications Privacy Act of 1986.
http://law2.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+1057+0++%28%29%20%20AND%20%28%2818%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%282510

TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS
INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
http://floridalawfirm.com/privacy.html

STATE OF MICHIGAN

THE MICHIGAN PENAL CODE (EXCERPT)
750.539c Eavesdropping upon private conversation.
Sec. 539c. 

?Any person who is present or who is not present during a private
conversation and who willfully uses any device to eavesdrop upon the
conversation WITHOUT THE CONSENT OF ALL PARTIES THERETO, [emphasis
mine] or who knowingly aids, employs or procures another person to do
the same in violation of this section, is guilty of a felony
punishable by imprisonment in a state prison for not more than 2 years
or by a fine of not more than $2,000.00, or both.?
MICHIGAN LEGISLALTURE
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-750-539c&queryid=8573154&highlight=eavesdropping



Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. If you have any questions
about my research please post a clarification request prior to rating
the answer. Otherwise, I welcome your rating and your final comments
and I look forward to working with you again in the near future. Thank
you for bringing your question to us.

Best regards;
Tutuzdad ? Google Answers Researcher


ADDITIONAL INFORMATION SOURCES

TELEPHONE AND TELEGRAPH RECORDING BY STATE
http://archive.aclu.org/issues/cyber/phonelaw.html#MI

ANOTHER TOOL FOR FIGHTING TELEMARKETERS
http://www.battlecreekonline.com/news/fullnews.asp?ID=132

AG?S OPINION #6106
http://www.ag.state.mi.us/opinion/datafiles/1980s/op06106.htm




SEARCH STRATEGY


SEARCH ENGINES USED:

Google ://www.google.com




SEARCH TERMS USED:

MICHIGAN

LAW

STATUTES

TELEPHONE

TELEGRAPH

EAVESDROPPING

WIRETAPING

STATE

FEDERAL

EXEMPTIONS

---

Clarification of Answer by tutuzdad-ga on 04 Dec 2004 19:27 PST

Second paragraph correction:

"Even under Federal law, which permits certain exemptions when
criminal activity if afoot as long as state law is not restrictive
against it, it is still illegal."

Should read:

"Even under Federal law, which permits certain exemptions AS LONG AS
criminal activity is NOT afoot as long as state law is not restrictive
against it, it is still illegal."

---

Request for Answer Clarification by gpssysop-ga on 04 Dec 2004 20:39 PST

Dear Tutuzdad, 

Thank you very much for an answer that did indeed exceed my
expectations!  I am greatful for the newfound understanding of these
laws.

I have only one request for a bit of clarification.  In your second
paragraph, you state the following:

"It is indeed illegal in that state in all instances and under all
conditions for a non-law enforcement related individual acting in an
official capacity to record a telephone conversation unless EVERYONE
in the conversation gives verbal or written consent."

My question is about the individual acting in an official capacity. 
Because the individual is not a law enforcement officer, does the
reference to acting in an offical capacity indicate that the
individual is acting on behalf of a corporate entity?  There doesn't
appear to be such a distinction in the rest of your response, but I
just wanted to be sure that this applies to an individual's private
conversation in his or her own home (as it appears to).

Thank you again!

Gpssysop-ga

---

Clarification of Answer by tutuzdad-ga on 05 Dec 2004 07:36 PST

It unfortunate that I was not able to get back to you before the
commenter prematurely posted because he is obviously reading into your
question more than what you actually asked. I apologize for that
inconvenience and the confusion it must have caused you. Normally,
most researchers wait until a clarification is answered before doing
that but when an overly ambitious post shows up prematurely we just
have to try and work around it.

In most instances one can find any number of conflicting legal
opinions from the courts relative to a host of hypothetical
situations, as we see from the commenter in this case. I believe the
commenter went out on a limb and did not address your question before
answering questions that were never asked. Sticking to your original
question however I will try to clarify the issue a bit about WHAT THE
LAW SAYS (your question) and not WHAT THE COURTS HAVE SAID (which was
not part of your question and an issue I did not address, since that
is another issue entirely which he may wish to research for you
separately).

You will find the Attorney General?s opinion relative to law
enforcement exemptions in an official capacity in the link I provided
here:

AG?S OPINION #6106
http://www.ag.state.mi.us/opinion/datafiles/1980s/op06106.htm

This opinion does not extend to corporate authority rather in
instances where authorized law enforcement surveillance is required.

Although the commenter pointed out decisions that appear to support
the notion that one can, in some instances, record conversations, and
while some courts have obviously conflicted in their opinions as to
the permissiveness of the law, your question was related to what the
law ?says?. Courts do not always support the letter of the law which
often leads to statutory changes, but this has not happened as of yet.
As it currently stands the law is still clear that one cannot record a
conversation in the State of Michigan, even if he is a consenting
party, when other parties to the conversation have not given consent.

Contrary to what the commenter states, I maintain that the definition
of ?eavesdropping? extends to recording conversations to which you are
a part.

?Eavesdrop? or ?eavesdropping? means to overhear, record, amplify or
transmit any part of the private discourse of others without the
permission of all persons engaged in the discourse. Neither this
definition or any other provision of this act shall modify or affect
any law or regulation concerning interception, divulgence or recording
of messages transmitted by communications common carriers.?

LEGISLATIVE COUNCIL, STATE OF MICHIGAN
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-750-539a&highlight=

Here the legal definition states in part ??private discourse OF others
without the permission of ALL PERSONS engaged in the discourse??

The law clearly COULD have said ?between? others (as is secretly
taping a conversation to which you are not a part) rather than ?of?
others (meaning recording another person?s voice without his
permission in all instances and under all conditions), but it did not.
In other words, surreptitiously recording the ?side? of a conversation
that someone did not give consent to record would be covered under
this definition, even if you were a part of that conversation.

Now, would the court support you or hold you accountable if you were
to be prosecuted or sued civilly? There?s no way to predict that with
any degree of accuracy. It seems that some courts have, in the past,
had varying opinions about this particular law. Nevertheless, what I
have shown you is what the claw currently says (which is what you
asked) until such time as it changes (if it ever does).

I hope this clarifies my research. If the commenter would like to
research the courts various opinions on the matter, that might be
something you could employ him to do in a separate question since he
seems anxious to do that.

Regards;
Tutuzdad-ga

Thank you very much, Tutuzdad, for the clarification and the truly
masterful answer.  I certainly got more information than I had even
hoped for and have therefore gained a far better understanding of the
laws involved with phone conversation recording.  I greatly appreciate
your time and effort in compiling quality, relevant information.

I appreciate the contrasting views of the comments, as well.  It is
interesting that, even in this forum, there are dissenting opinions
about this law.  This helps to provide insight into how this topic
might be addressed by the legal system and about the gray areas that
are unfortunately present.

Once again, thank you for your excellent work!  

Gpssysop-ga

Dear gpssysop,

There are two situations which should be distinguished in terms of
Michigan's eavesdropping statute. In the first situation, a third
party (e.g., a private investigator, or a news crew) makes a
surreptitious recording of a private conversation, perhaps by having
one of the participants use a hidden microphone. Under Michigan's
eavesdropping statute, that recording is unlawful unless it is made
with the consent of all parties to the conversation. See, e.g.,
Dickerson v. Raphael, 222 Mich. App. 185, 564 N.W.2d 85 (1997),
reversed in part 461 Mich. 851; 601 N.W.2d 108 (1999).

However, where the recording is made by a party to the conversation,
the statute does not apply. There is a statutory definition of
"eavesdrop" at MCL 750.539a(2), which provides in relevant part:
"'Eavesdrop' or 'eavesdropping' means to overhear, record, amplify or
transmit any part of the private discourse of others without the
permission of all persons engaged in the discourse." Thus,
definitionally, if you are a party to a conversation you cannot be
said to "eavesdrop upon the conversation", as it is not a conversation
"of others".

You can review that statute on the Michigan Legislature's website:
http://www.michiganlegislature.org/mileg.asp?page=getObject&objName=mcl-750-539a

Accordingly, the Michigan Court of Appeals has observed, "Thus,
'eavesdropping' is limited to overhearing, recording, amplifying, or
transmitting the private, oral, or written communication *of* *others*
without the permission of all persons engaged in the communication.
For that reason, a participant in a private conversation may record it
without 'eavesdropping' because the conversation is not the 'discourse
of others.' Sullivan v Gray, 117 Mich. App. 476, 481; 324 N.W.2d 58
(1982)." Lewis v. LeGrow, 258 Mich. App. 175, 185; 670 N.W.2d 675
(2003) (emphasis in original).

You may review the Lewis decision, in PDF format, on the Michigan Courts website:
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20030821_C234723_55_161O.234723.OPN.COA.PDF

- expertlaw

Here is a link to a page concerning Michigan telephone privacy law at
the website of the Reporters Committee for Freedom of the Press, which
is an organization that is a respected source of state-by-state
information on legal matters affecting journalists:

Reporters Committee for Freedom of the Press: "Can We Tape": Michigan
http://www.rcfp.org/taping/

The Reporters Committee cites the ruling of a Michigan appellate court
in the 1982 Sullivan case (cited by expertlaw-ga) that recording by a
party to a conversation is not prohibited "eavesdropping" under the
Michigan statue.  It also notes that the 1999 Michigan Supreme court
ruling in Dickerson v. Raphael (also cited by expertlaw-ga) appears to
stand for the proposition that, while the act of recording a
conversation by a participant is currently legal under the Michigan
statute, "broadcasting" that conversation is not.

markj-ga

Dear gpssysop,

Perhaps, in light of the incorrect information provided above, I
should clarify my comment. By way of background, I am a practicing
Michigan lawyer, I have dealt with this statue within the context of
both civil and criminal litigation, and I have organized seminars for
lawyers where the statutes you mentioned were a leading topic. From my
perspective, your question was elementary, so I was suprised to see
that you received an incorrect answer.

I provided you with an accurate description of what the statutory law
says, and then I presented case law which confirmed my accurate
recitation of the statute. A retort to the effect that you can find a
"number of conflicting legal opinions from the courts relative to a
host of hypothetical situations" reflects only that the speaker does
not understand how to research and interpret case law.

The problem with the original answer is that it both misinterpreted
the statute at issue, and that it failed to check for relevant
statutory definitions, perhaps as a result of finding the inaccurate
pimall information before actually looking at the law itself. That
resulted in a misinterpretation of the text of the law - an
interpretation wrong on its face.

While it is true that the question asked what the law states, within
that context it is crucial that an answer both accurately present what
the law says, and that its interpretation be consistent with that
applied by the courts. In this case, the original answer misstated the
law through the failure to reference the relevant statutory
definitions. The small step of checking the governing case law (or
even looking up the annotated statute) would have quickly and easily
revealed that error.

- expertlaw

Once again, let me point out two issues and hopefully we can finally
put this to rest:

Having been in law enforcement myself for more than 20 years and being
quite capabale of interpreteting statutory language myself, I am fully
aware of two facts...

First, the fact that a person is a a practicing lawyer by no means
makes him an "expert" in his field. The question is not about court
opinion, it is about published law. My answer does not dispute the
fact that some courts have handed down opinions that such activity is
permissible, but the published law continues to state that the
activity is illegal - this has not changed in spite of what some state
courts (and lawyers) may have said.

Secondly, the customer here asked about what the law currently "says"
not what the courts have occassionally "ruled". The comments that
seems to continue on in the direction of judicial opinion cloud the
original question and serve little more than confusing information. In
contrast, I stuck with the original question and I wholeheartedly
stand by my answer. The published law in Michigan deems this activity
"illegal" - period. That is a fact.


It is also important to note that Sullivan v. Gray, 324 N.W.2d 58
(Mich. Ct. App. 1982), as quoted above, was "ONLY ONE COURT'S OPINION"
and is not representative of broad authority for everyone to follow.
THIS DOES NOT CHANGE THE WORDING OF THE LAW.

The reference to Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999) has
nothting to do with this question. It is relative to broadcasting a
taped conversation rather than actually recording it. Again, unlike
the commenter who prefers to wordsmith about various courts rulings, I
stuck to the question at hand.

http://www.rcfp.org/taping/states/michigan.html

"If you do it will you get away with it?"

Sure, you might! I readily admit that. Some people clearly have
depending on what how the court rules in their cases.

"Does that make it legal under current Michigan law?"

Nope. I think I've abundantly shown that in spite of what else is being said.

I hope this helps more than it hurts, since you are probably confused
enough already. Thank you for your question. I look forward to next
time.

Regards;
tutuzdad-ga

Gentlemen, 

While I did ask about what the law says, I must admit that my motive
was to determine if this was something that could be ?gotten away
with.?  The information you?ve provided has definitely helped in
making a decision about recording my own calls.  I am impressed with
the dedication and passion you apply to your research; it is nice to
know that my issue has been taken seriously.

Thanks again!  

Gpssysop