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Apr 2020
28
April 28, 2020

Ask First, Record Second: A Reminder that State and Federal Eavesdropping Laws Apply While Working from Home

As a result of the COVID-19 pandemic, many people are working remotely and conducting business via telephone calls or videoconferencing. Although these technologies provide convenient opportunities to record, it is important to remember that eavesdropping statutes may prohibit recording of conversations without the consent of the other meeting participants. Violations of these statutes may give rise to criminal and civil liability.

Eavesdropping statutes typically follow one of two patterns. Under federal law and in most states, a party to a conversation may record the conversation so long as one of the participants in the conversation consents—even if the person recording is the person who consents. These are commonly referred to as “one party” consent jurisdictions. Some states—including California and Pennsylvania—allow a party to a conversation to record the conversation only if all of the participants in the conversation consent. These are so-called “two party” or “all party” consent jurisdictions.

Michigan’s eavesdropping statute has long been thought to require the consent of only one party. The Michigan Supreme Court, however, has never authoritatively answered the question, and in 2019, a federal court held that Michigan is a two-party consent state. Although the federal court’s decision does not bind future courts, it calls into question the conventional wisdom that Michigan is a one-party consent jurisdiction. For now, the safest course is to assume that Michigan requires the consent of all parties.

Even if you and all of the parties to your conversation are in a one-party consent jurisdiction, the best practice is to announce that you are recording and seek all participants’ consent for you to do so. And if you or another party to your conversation are located in a two-party consent jurisdiction, you must seek all participants’ consent before pressing the record button to avoid potential liability.

Warner’s White Collar Criminal Defense and Investigations Practice Group is prepared to help you navigate these issues. If you have any questions, please contact Brian Lennon, Madelaine Lane, Charlie Quigg or Andrew Reside.

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