If you’ve ever resorted to Google to investigate whether the law allows you to record a conversation perhaps that’s why you’re here now), you’ve probably come across the notion of “two-party consent” and “one-party consent” states. While most states fall neatly into one of these categories, Michigan is not (technically) one of them.
Two-Party and One-Party Consent States
Many states only permit the recording of a conversation if all participants give their consent. Those states often earn the moniker of two-party consent or all-party consent states. For example, California is a two-party consent state. California Penal Code § 632 provides (emphasis added):
“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
Other states, known as one-party consent states, allow recordings if just one person consents. For example, Ohio’s statute (Ohio Revised Code § 2933.52) prohibits using a device to intercept a communication but provides several exceptions including that it does not apply to “[a] person who… who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception… .” See O.R.C. § 2933.52(B)(1).
Neither Glove Fits Michigan
We’ve written before that under Michigan’s eavesdropping statute, a person can record their own conversations without obtaining the consent of all other participants (sometimes dubbed the “participant exception” to the eavesdropping statute.) In effect, a person in Michigan can record their own conversations with the consent of only one person: themselves. Does that make Michigan a one-party consent state?
While it may be a convenient shorthand to think of Michigan as a one-party consent state, that is not literally true. Michigan does not permit just anyone to record conversations so long as they have the permission of any one person involved in the conversation. Only the participant themselves may record their own conversations with their own consent.
Michigan’s statue says, in pertinent part:
“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, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony… .” [MCL § 750.539c].
Note that unlike Ohio’s statute, Michigan’s statute does not create an explicit exemption for situations where “one of the parties to the communication has given the person prior consent to the interception.” See O.R.C. § 2933.52(B)(1).
Indeed, Michigan’s statute is drafted much more similarly to California’s; both states explicitly require the “consent of all parties” to the conversation. See MCL 750.539c (requiring “consent of all parties”); Cal Penal Code § 632 (requiring “consent of all parties”).
Michigan’s Rule is Exceptional
But if Michigan’s statute requires consent of all parties just like California, why isn’t Michigan a two-party consent state?
Michigan’s exception for participants arises from an unassuming phrase – “the private discourse of others” – appearing in the statutory definition of the word eavesdropping, located in a separate section of the statute. MCL 750.539a(2). The Michigan Court of Appeals determined this reference to the conversations of others meant the eavesdropping statute could not apply to one’s own conversations. Sullivan v. Gray, 117 Mich. App. 476, 481, 324 N.W.2d 58, 60 (1982).
As highlighted in a prior advisory, a small minority of courts have disagreed that the phrase “private discourse of others” creates an exception for conversation participants, and that interpretation certainly has some intuitive appeal: if the Michigan legislature really wanted to create an exception for participants, it could have done so very explicitly and directly (like Ohio), rather than requiring the consent of all parties (like California) and burying such a massive exception in a seemingly innocuous phrase in the definitions section. To our knowledge as of this writing, the only notable recent case to reject the participant exception has reconsidered and reversed its prior ruling, and there is no longer any persuasive authority to suggest that Michigan does not recognize a participant exception.
If you need a shorthand for remembering Michigan’s rule, I suggest latching onto “participant exception.” Michigan is a two-party consent state, with an exception for recordings by conversation participants. The exception nearly swallows the rule, but it would be a mistake to believe a person could legally record a conversation in Michigan just because they were given permission by one of the participants to the conversation. If you have any concerns about the legality of your recording activities, don’t rely on a shorthand or Google; consult with a lawyer who can consider the specific facts of your case, as well as other relevant legal issues.