Answer: We don't really know yet.
So when asked if you can record a conversation you're a party to without the consent of all participants, the answer is a definite maybe.
Here's the statute in question:
750.539c Eavesdropping upon private conversation.
Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, 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.
Clear as mud, right? Does it mean if you're not a party to the conversation you need consent of all the parties but if you're a part of the conversation you may record it? Mess up and it's a 2 year felony so interpret the language wisely.
It took until 1981 to get a suggestion of an answer as to the meaning of this statute passed in 1966.
In Sullivan v Gray The Michigan Court of Appeals said yes it means exactly that a participant can record the conversation but canoe use any third party to do it for him, nor can a third party not a part of the conversation do so without violating the statute.
Then in 2001, in an unpublished decision of Swan v. Bob Maxey Lincoln Mercury, The Court of Appeals then clearly stated that the statute is not violated when a party to the conversation records it even if they do not tell the other parties they are being recorded. But this is the Court of Appeals doing an annoying unpublished decision so its precedential value is always an issue.
You'd think that would be pretty definitive, right? Not so fast.
The Detroit News: Federal judge questions Michigan's secret recording law, asks Supreme Court to weigh in
Since the Michigan Supreme Court hasn't ruled on it, our Attorney General is asking them to do so, as the Federal Judge in the case basically said she doesn't care what the Court of Appeals has ruled on the topic, and initially held it did not allow a person to record a conversation they are a party to without permission of all involved.
That gets problematic real fast.
The fun part according to the article, our lefty Attorney General is apparently is indicating her office is prepared to and will argue both sides.
This is especially delicious as the reason for this is an organization lefties love to hate - Project Veritas - is at the center of this dispute.
One of its "agents" or simply someone who decided to provide it to PV after taping it, taped aconversation they took part in with a union boss of the American Federation of Teachers in Michigan concerning some allegedly pretty sketch dealings in regards to a member accused of misconduct involving a 6-7 year old and subsequent nice payout and soft exit the union arranged for him.
AFT took umbrage to the conversation being published on the rather embarrassing topic and sued.
So we'll see if the Michigan Supreme Court will take this up and give us a clear and binding answer as to the meaning of the statute.
3 comments:
Good luck with that!
Old NFO: Yep, it'll be fun to see how the MSCT rules on this one. Most lawyers reading the statute would say it allows for parties to the conversation to record the conversation and is designed to stop eavesdroppers.
Toss up as to what the MSCT does, but the Court of Appeals decisions are pretty decent and hopefully MSCT follows along with the reasoning.
The really fun stuff will happen when a person records some action of BLM,Antifa,or a conservative group,at a rally, doing something that they don't like,and trying to use it for political gain. I can see the BLM recorder getting sued for recording a man or woman's voice,during which time there is an altercation. The fun that the lawyer could have with that one.
pigpen51
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