Recording Conversations

The Sixth Circuit Court of Appeals recently ruled that a participant in a conversation does not violate Michigan’s eavesdropping statute by recording the conversation without the consent of the other parties. Fisher v Perron, Docket No. 21-1184 (CA 6, 2022). This decision, especially in light of the Michigan Supreme Court’s refusal to review this issue in a different case, reaffirms that Michigan is a one-party consent state for recordings.

In this case, Mr. Fisher alleged that his sister violated Michigan’s eavesdropping law by recording over a dozen phone conversations between themselves and two other siblings about their late mother’s estate and related litigation. He asserted that Michigan’s eavesdropping law prohibited the use of an electronic “device to eavesdrop upon [a] conversation without the consent of all parties thereto.” When the trial court dismissed the claim, Fisher appealed to the Sixth Circuit, arguing that Michigan’s law required the consent of all parties for a conversation to be lawfully recorded.

Although the Michigan Supreme Court has yet to determine whether Michigan’s law requires the consent of all parties, it recently declined to consider the issue in AFT v Project Veritas, Docket No. 17-13292 (ED Mich, 2021). The Sixth Circuit reviewed past precedent, including the Supreme Court’s recent decision not to review the issue, and held that Michigan is a “one-party consent state,” meaning only one party to a conversation is required to consent to its recording. Based on that holding, the Court rejected Fisher’s illegal eavesdropping claim.

Regardless of this decision, school officials should exercise caution before recording conversations, including virtual meetings, without the consent of all parties. Non-consensual recording by a participant to the conversation, while not criminal, may still violate board policy, a collective bargaining agreement, or student privacy law. Such recording also risks negatively impacting student and employee relations.