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For the Record: Is There Still a Participant Exception to Michigan’s Eavesdropping Statute?

October 4, 2021

As we’ve pointed out before in our previous advisory Recording Conversations With Your Cellphone: With Great Power Comes Potential Legal Liability, modern smartphones make it easy for people to record voice memos in place of written notes, and maybe even record whole meetings or conversations for later reference. But in doing so, it is wise to exercise some caution. Under Michigan’s Eavesdropping law[1] it is a felony punishable by up to two years and $2,000 to willfully use any “device” to “eavesdrop” on (meaning to overhear, record, amplify, or transmit) a conversation without the consent of all participants in that conversation.[2] It is also a felony for a person to “use or divulge” any information that they know was obtained through illegal eavesdropping.[3] This means using your phone to record conversations could, under some circumstances, amount to a crime.

Since 1982: Michigan has recognized a “participant exception” for nearly 40 years

Fortunately (at least, for anyone who likes to casually record their own meetings or conversations), Michigan courts have consistently recognized an important exception to Michigan’s eavesdropping statute: it does not apply to recordings you make of your own conversations; it only applies to conversations of “other” people. If you are a participant in the conversation, you are free to record, even without the permission of any other participants. The Michigan Court of Appeals had seemingly settled this question back in 1982, in the published decision of Sullivan v. Gray,[4] stating “We believe the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to ‘the private discourse of others.'” The Court of Appeals has affirmed this interpretation of the statute several times and the Michigan Supreme Court has never seen fit to overrule Sullivan. Likewise, the Michigan Legislature has not amended the statute in order to eliminate the participant exception.

2019: A federal court declines to participate

Recently, however, a federal court in Michigan injected some uncertainty into this longstanding interpretation of Michigan’s eavesdropping statute. In AFT Michigan v. Project Veritas,[5] a judge for the federal district court for the Eastern District of Michigan made the surprising choice not to follow a published decision of the Michigan Court of Appeals on a question of Michigan law that had been settled for nearly 40 years. The court in AFT explained that it was only obligated to follow decisions of the Michigan Supreme Court (and not the lower Michigan Court of Appeals), which had never addressed the participant exception to eavesdropping statute. The AFT court then conducted its own analysis of the statutory language and concluded that the Michigan Legislature had not intended to exclude participants from the statute. Thus, the AFT court declined to follow Sullivan, and also certified the question of statutory interpretation to the Michigan Supreme Court for determination, affording the Supreme Court the opportunity to settle the issue once and for all if it so chose.

2021: Other courts continue to recognize the participant exception

Not long after AFT was decided, however (and before the Michigan Supreme Court took any action on the certified question from AFT), a different federal judge in the Eastern District of Michigan, in the case of Fisher v. Perron,[6] disagreed with the court in AFT and decided to follow Sullivan, holding that a participant in a conversation was incapable of violating Michigan’s eavesdropping statute. The Fisher court reasoned that all available evidence suggests that the Michigan Supreme Court would reach the same conclusion as the Court of Appeals did in Sullivan. The Fisher court noted that the Court of Appeals has affirmed Sullivan many times (including in the published case of Lewis v. LeGrow[7]) and the Federal Sixth Circuit Court of Appeals also continues to follow Sullivan (even while the certified question from AFT was pending before the Michigan Supreme Court).

In May of 2021, the Michigan Supreme Court formally declined to answer the certified question from the AFT court.[8]

The Current Status of the Participant Exception

Following these recent developments, what is the status of the participant exception to Michigan’s eavesdropping statute? The most strongly supported interpretation is that Michigan does still recognize a participant exception. That is what the Court of Appeals has consistently said for nearly 40 years, and neither the Michigan Supreme Court nor the Michigan Legislature has seen fit to respond to that interpretation. That is also what the majority of federal courts have said, including the Sixth Circuit Court of Appeals. The only notable outlier is the Eastern District of Michigan’s opinion in AFT, which was not followed by subsequent decisions within the district and whose certified question the Michigan Supreme Court declined to answer. In light of this recent history, it is unlikely that a court applying Michigan law would refuse to recognize the participant exception. (That said, it’s not impossible: the AFT court’s refusal to follow Sullivan seemed only slightly less unlikely at the time.)

Nevertheless, anyone considering implementing a practice of regularly recording conversations without the consent of all participants should consider many other legal issues that may come into play, which we referenced in an earlier article. As before, the safest route is to always get permission from everyone involved before recording a conversation or sharing a recorded conversation with anyone. If that’s not an option, consult with a lawyer who has had an opportunity to consider all of the facts involved in your specific case.

[1] MCL 750.539 et seq.
[2] MCL 750.539a; MCL 570.539c
[3] MCL 750.539e
[4] 117 Mich. App. 476, 481, 324 N.W.2d 58, 60 (1982)
[5] 397 F. Supp. 3d 981 (E.D. Mich. 2019)
[6] No. 20-12403, 2021 WL 103633, at *4 (E.D. Mich. Jan. 12, 2021)
[7] 258 Mich. App. 175; 670 N.W.2d 675, 684 (2003)
[8] In re Certified Question from United States Dist. Ct., E. Dist. of Michigan, S. Div., 959 N.W.2d 172 (Mich. 2021).

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