Michigan’s Law on Public Recording: Everything You Need to Know

Intro to Michigan’s Law Regarding Public Recording

Michigan’s public recording laws are relatively simple. The State of Michigan is one of a handful of states that does not have a two-party consent recording law. In other words, Michigan is a "one-party consent" state. This means that a recording of a private conversation will lead to criminal and civil penalties only if the conversation is "overheard or intercepted" without the consent of at least one of the parties to the conversation. Measured against federal wiretapping laws, Michigan’s laws regulating eavesdropping arguably do not go as far.
For example , the Michigan eavesdropping statute provides criminal and civil liability for the tape-recording of a conversation that occurs in a private place. Conversely, the federal wiretap statute (18 U.S.C. § 2511, et seq.) criminalizes the "interception" of a communication that takes place over a wire, radio or electronic communications. Whereas Michigan’s law requires the conversation to occur in a "private place," the federal statute requires only that the recording be "oral."
Eavesdropping rules apply equally to the recording of conversations in person or by telephone. As well, eavesdropping rules apply equally to the recording of conversations made with or without the use of a recording device.

Recording: Legality in Public vs. Private

Except as provided by law, a person shall not do any of the following: (i) Open or enhance an auditory or video record that is not public. (ii) Use an auditory or video recording device to capture the voice or image of another person when the other person has a reasonable expectation of privacy without consent when the capture occurs. MCL 750.539c(1) (emphasis added). MCL 750.539e(2) provides: This section does not apply to either of the following: (c) A person engaged in lawful employment doing either of the following: Obviously, MCL 750.539c(1) and MCL 750.535e(2)(c) appear to create inconsistencies and confusion. If the "lawful employment" exception applies, what does the "reasonable expectation of privacy" exception mean? It seems to me that a person could record with apparent permission – an employer, agent, volunteer, or agent of a volunteer that has a relationship with the entity – without violating the reasonable expectation of privacy exception. Before you can do so, however, you must be clear as to the legal distinctions between public and private spaces. As a general rule, a space is defined as "private" if there is an "expectation which society is prepared to recognize as reasonable." People v. McIntosh, 138 Mich App 485. 489, 361 NW2d 378 (1984). Simple enough. The general rule in determining whether one has a reasonable expectation of privacy, is if a person: Has believed he or she is free from intrusion, in an essentially private place protected from the public eye. People v. Patterson, 428 Mich 502, 524, 410 NW2d 733 (1987). The determination of whether a person had this right to privacy becomes more complicated when the location of the recording is considered. As it pertains to Michigan, whether a videotaping, specifically a "sneak peak" videotaping, is allowed, does not depend on whether it takes place in a public or a private space, because the necessity for privacy is the determining factor as to whether the recording will be inseparable from the life, health, character, or personal reputation of an individual. Paterson v. City of Napoleon, 233 F 3d 492, 498 (6th Cir 2000). Paterson, although incorporated from a federal court, is a Sixth Circuit Court opinion, so it is not controlling as to Michigan, but it provides a more nuanced approach to the issue, and one that is relevant to your situation. In Paterson, the Sixth Circuit Court noted that because the video tape was taken from a location where the public could go with no restrictions, the plaintiff did not have a reasonable expectation of privacy. Id. at 498. Here, the footage was taken from a location that any member of the public could secure access to. Because there was no reasonable expectation of privacy, the defendant’s actions did not constitute an impermissible recording under Michigan law. Id. at 498-99. This situation means, for example, that a person has a right to expect privacy in their home. Conversely, if a person chooses to walk down the street and record video or audio, that person walks in the street without any expectation of privacy. Conversely, any person who is a member of the public or has public access to an area has a right to record video and audio, and a right not to be excluded from a space that would otherwise be open to the public. When a private party attempts to exclude an individual from a space open to the public, that party, whether acting singly or in concert with a third party, including a public actor, is engaged in state action, and is thus a state actor. Id. Here, when the security guard threw the plaintiff out of the store, that individual acted as a state actor. The determination of whether a space is public or private depends on where the individual intends to conduct the recording, and the right to access that space.

Who Needs to Give Consent to Record in Public?

As homicides and harassment cases become more politicized, news media and journalists have turned to recording incidents in public, namely police activities. This begs the question, do you need to obtain consent to video or audio record in public and what does Michigan law say?
In short, you do not need to obtain consent to capture images or sounds of people or events taking place in a public space. It’s legal for a person on foot to walk up to an event and record in much the same way that broadcasting cameras do from across the street. Further, as long as the person or people being recorded can see or hear your camera, no special authorization is required; you can certainly use an elevated camera or high-quality long range lens to record.
Two party consent is required to record and publish on audio or video any private communication that takes place in a personal setting, including homes or office spaces where people do not have a reasonable expectation of privacy. That means that if you are recording a meeting or a short story, it would be wise to confirm with the participants that they are giving consent to record, and perhaps vocally document that permission in the audio, just to keep your bases covered.
It is important to note, however, that while you did not need consent to capture the footage, you may need to seek permission for publication. In a case in 2018, a Michigan woman recorded an entire police encounter. After she published the footage online, the police department sued for defamation and was awarded $110,000.

Michigan Cases Interpreting and Implementing the Statute

Notable in this regard is the 2014 Michigan Supreme Court decision In re Conservatorship of Hight. 498 Mich. 190 (2014) in which a statutory interpretation of MCL 565.29 led the Court to overturn 40 years of precedence and finally, and unambiguously, overturns the previous Court of Appeals decision in In Re Eid, 291 Mich. App. 449; 806 N.W.2d 379(2011). The statute interpreted by the Court in In re Conservatorship of Hight did not involve public recording, however upon examination of the decision it is apparent that the Court adopted the 1940’s and 1950’s "common law" general presumption approach to recording statutes as applied to real estate title . These long established "public policy" standards were the historical basis of the well-respected jurisprudence regarding legal recordation. The judicial and statutory interpretation of recording statutes is a common thread in the state of Michigan that has resulted in a single definition of what constitutes "constructive notice." As such, In re Conservatorship of Hight resolves any prior ambiguity in the law and further strengthens the principles that have shaped and guided the policies of recordation in the state of Michigan.

Unlawful Recording Penalties

Violating Michigan’s public recording laws can potentially lead to serious legal consequences. The law specifies that anybody who records their landlord without their consent could be found liable for damages. There are also civil penalties for anyone who refuses to erase a recorded conversation upon a landowner’s request.
In Michigan, it is a jailable offense to post the recordings of a private conversation. If caught, you could be placed in jail for up to 2 years or face up to $5,000 in fines. Under some agreements, such as those between service providers and the federal government or state, there may be a requirement to destroy the recordings after they are no longer necessary. For those who violate this term, the fines could be up to $10,000.
It is also possible to receive up to a 15-year prison sentence if you commit blackmail. Any person blackmailing another by illegally recording them without their consent would face a separate civil penalty on top of the other violations.

Tips for Public Recording the Right Way in Michigan

To ensure you remain within the bounds of the law, keep the following in mind for legal recording in public spaces in Michigan:
Record only what you can see and hear. In Michigan, in most circumstances, you can record what you can hear and see, but generally not anything that is not exposed to public view, such as what is going on inside someone’s house. For example, if you’re videotaping at an outdoor event in public space where people are unprotected by expectations of privacy, go ahead and video. But if you enter someone’s home to take a video of conversation taking place in their living room, you may cross into breach-of-privacy territory.
Be polite. Just because it may be legal to do so, doesn’t mean it’s always advisable. Even if you’re recording video on public property, a store may ask you to leave or take down your recording if they feel they’re being "argued with" rather than documented. Don’t think because you’re in public that an employee has to give you access to everything — it’s still private property until a financial transaction is made.
Ensure that you are not engaged in any "egregious conduct." This is a generalized term for the legal concept of "interference with or distraction of a law officer in the discharge of his or her official duties." While that may seem straightforward, the legal definition of "law officer" in Michigan statute specifies both "a village policeman, chief of police, undersheriff, deputy sheriff, town marshal, or constable" — basically, police officers who are engaged in the performance of their official duties — as well as "a person lawfully executed to be or perform the duties of a law officer." So essentially , any local law enforcement may fall into this provision and you should be respectful of their directions to vacate or stop videotaping when requested unless there is a compelling reason to do otherwise.
Be aware that store security officers are not law officers. For example, Target reserves the right to search bags, detain suspected shoplifters, and have a customer escorted off the property when necessary. Should that occur, however, you’re not obligated to show them recordings; they may ask, but they can only really stop someone who may be carrying out a crime. This is important to keep in mind, should you be involved in a situation where a Target or other store security officer believes you are involved in something illegal. They may detain you and review video footage, but they cannot use excessive force or treat you as they would someone who was carrying out a theft or robbery, and with evidence of your activity on camera they may be inclined to treat you more like someone who gets caught on camera by Target’s regular security cameras.
Keep in mind the purpose behind what might seem to some a petty nuance. In most cases, where it’s perfectly legal to do so, it’s all in good fun and an avenue of self-expression. But do consider the larger implications of your actions. Recording officers in the discharge of their duties is legal in many respects, but it’s aspects like this that lead to legislation that some people might find "nuts." The concept of free speech, for instance, is nuanced because it’s easy to consider an individual’s right to express themselves as interference with others’ rights to conduct their jobs or do their business or what-have-you. When you’re considering legal recording in Michigan, be respectful of those boundaries when you can.