Purpose Driven General Counsel

Happy Wednesday, all!

The morning sunrise is so rare this time of year in Michigan and it had some particularly interesting effects this morning so I had to snap this photo.

One of the questions that I routinely get from business clients, can a business owner install video recordings in businesses?

The answer has some caveats because there are various legal protections in place to protect the right to privacy – both criminal laws and civil.

In general, so long as the videos:

a. do not record audio and

b. are in locations that are not “private” which would infringe on individual’s reasonable expectation of privacy (e.g. – bathrooms) monitoring is ok.

Michigan’s Eavesdropping Law – cannot record audio of third parties.

Michigan law specifically prohibits the willful use of a device to eavesdrop on a conversation without the prior consent of all parties. See MCL §750.539c.  Case law has confirmed that a party to the conversation can lawfully record audio – but not a third party. This would generally make it unlawful for a surveillance camera to record audio without the consent of all parties.

Michigan’s Surveillance Law – can record unless it invades a private place

Michigan law creates a criminal and civil cause of action for invasion of privacy, which Michigan has long recognized as a common-law tort. Lewis v. LeGrow, 258 Mich. App. 175, 178, 670 N.W.2d 675, 680, 2003.

Under Michigan Law, MCL 750.539(d)

A person shall not do either of the following:

• Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

• Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

Does not Apply to Residences – New Michigan Bill would Clarify This

This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose.

I just reviewed a new Michigan House Bill 5421 – check out the legislative analysis from February 17, 2020 here

This Bill would simply make clear that it does not apply to any device for purposes of security monitoring, so long if done in compliance with applicable statute.

The Purpose of the Eavesdropping Statute

Michigan case law has held that “The essence of [the statute] is to protect against the secret, nonconsensual photographing of an event in a place where the person secretly photographed would reasonably expect to be safe from such “surveillance,” Mich. Comp. Laws § 750.539a(3)”
Lewis v. LeGrow, 258 Mich. App. 175, 178, 670 N.W.2d 675, 680, (2003).

People in a private place have a “reasonable expectation of privacy”. The Statute , Section 539a, defines “private place” to mean: “a place where one may reasonable expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access.”

The Michigan Court of appeals has further clarified the definition of “private place”.

“The definition of “private place” must afford protection from two alternative types of intrusion, “casual or hostile intrusion” or “surveillance,” and also not be “a place to which the public or a substantial group of the public has access.” Thus, to qualify as a private place the area must be one in which a reasonable person would expect not to be disturbed by the appearance of another person or be subject to surveillance and the area also must not be one to which the general public has access.” Lewis v. LeGrow, 258 Mich. App. 175, 178, 670 N.W.2d 675, 680, (2003)

Simply put, the Michigan legislature intended that private places are places where a person can reasonably expect privacy.

Questions? Comments?

E-mail: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Twitter: @JeshuaTLauka