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Re: [infoguys-list] Is it legal to use a record someone in MN?

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  • Bob Hrodey
    ... Okay, here are TWO excellent resources that will give you some GUIDANCE. You still need to run your particular situation past a lawyer that you are paying
    Message 1 of 22 , Jul 2, 2007
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      Betteye, wrote the following at or about 7/2/2007 9:46 AM:
      > Please post the answer to the list. I was told that in Michigan it is legal to record a conversation.
      > The court upheld the recorded conversation. I don't know about phone recordings? I consider this the grey area. I have the understanding that you can record a phone conversation if you inform all parties that they are being recorded. Please tell how we could do a search to determine the legality of recordings.
      >
      > I know a disbarred circuit court judge. I will try to locate her now be back with more on this issue.
      >
      > thanks
      > Betteye

      Okay, here are TWO excellent resources that will give you some
      GUIDANCE. You still need to run your particular situation past a lawyer
      that you are paying to get a solid legal opinion. This area of the law
      is in a constant state of change as new technologies emerge and as PI's,
      private citizens, news reporters, police, etc. do new and incredibly
      stupid things with it.

      http://www.rcfp.org/taping/

      http://www.poynter.org/resource_center/

      And, Bettye, you're kidding us about getting information from a
      disbarred judge, right? LOL!


      --
      Enjoy,

      Bob
      _______________________________________________________________________
      Hrodey & Associates Established 1977
      Post Office Box 366 Member of NALI, ASIS, FBINAA, NAPPS
      Woodstock, IL 60098-0366 NCISS, Assoc Det of IL & P.A.W.L.I.
      Licensed in IL & WI (815) 337-4636 Voice 337-4638 Fax
      e-mail: inquiry@... or rth@...
      Illinois License 115-000783 Wisconsin 8045-063
    • Jim Parker
      Not quite, Sue. Michigan is one of those odd exceptions which looks on
      Message 2 of 22 , Jul 2, 2007
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        <<<< Bottom line: Michigan appears to be an ALL party state for ALL
        recordings. >>>>


        Not quite, Sue. Michigan is one of those odd exceptions which looks on the
        surface to be an all party state, but case law has decreed otherwise.

        In order to make sense of the statute, you must first read how Michigan
        defines "eavesdrop" or "eavesdropping"

        750 §539a(2))

        (2) “Eavesdrop” or “eavesdropping” means to overhear, record, amplify or
        transmit any part of the PRIVATE DISCOURSE OF OTHERS without the permission
        of all persons engaged in the discourse. [emphasis added]

        The key phrase in there is "private discourse of others"

        Michigan courts have held that any conversation you are a party to is not a
        conversation "of others" and can therefore be recorded.

        If, however, you were listening (and/or recording) the conversation on an
        extension phone, but were not a party to the actual conversation, even if
        one of the parties knew of the recording, that would violate the statute.

        In other words, parties can record their OWN conversations, but if a third
        party records it or is involved in the recording of it, it's illegal.

        I believe you'll find the relevant case law in: Sullivan v Gray, 324 N.W.2d
        58 (Mich. Ct. App. 1982), which concludes:

        "We believe the statutory language, on its face, unambiguously excludes
        participant recording from the definition of eavesdropping by limiting the
        subject conversation to "the private discourse of others". The statute
        contemplates that a potential eavesdropper must be a third party not
        otherwise involved in the conversation being eavesdropped on."

        It's not a particularly well written law.

        Jim



        -----Original Message-----
        From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com]
        On Behalf Of suesarkis@...
        Sent: Monday, July 02, 2007 12:14 PM
        To: infoguys-list@yahoogroups.com
        Subject: Re: [infoguys-list] Is it legal to use a record someone in MN?

        Betteye -


        I do not know the qualifications of whomever might have informed you that it

        is legal to record a conversation but I would consult with an attorney
        before
        even thinking of recording in Michigan. Although I am not an attorney,
        that is not how I read the law.


        The statute below states that a private conversation legally cannot be
        overheard or recorded without the consent of all participants. Illegal
        eavesdropping can be punished as a felony carrying a jail term of up to two
        years and a
        fine of up to $2,000.
        In addition, any individual who divulges information he knows, or reasonably

        should know, was obtained through illegal eavesdropping is guilty of a
        felony
        punishable by imprisonment for up to two years and a fine of up to $2,000.
        Mich. Comp. Laws § 750.539e. Civil liability for actual and punitive damages

        also are sanctioned. Mich. Comp. Laws § 750.539h.
        The exact statute reads:
        750.539c Eavesdropping upon private conversation. Sec. 539c.
        Any person who is present or who is not present during a private
        conversation
        and who wilfully 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 punishable by imprisonment in a state prison for not more than 2
        years
        or by a fine of not more than $2,000.00, or both.
        Even parents have limitations -
        Under the Michigan statute, a parent may not vicariously consent to a
        recording for a minor child. Williams v. Williams, 603 N.W. 2d 114 (Mich.
        Ct. App.
        1999).
        It is a felony to observe, photograph or eavesdrop on a person in a private
        place without the person's consent. Mich. Comp. Laws § 750.539d. A private
        place is a place where one may reasonably expect to be safe from intrusion
        or
        surveillance, but not a place where the public has access. Mich. Comp. Laws
        §
        750.539a.
        And then you have at least one contrary court decision:
        The eavesdropping statute has been interpreted by one court as applying only

        to situations in which a third party has intercepted a communication, an
        interpretation that makes it legal for a participant in a conversation to
        record
        that conversation without the permission of other parties. Sullivan v. Gray,

        324 N.W.2d 58 (Mich. Ct. App. 1982).
        Bottom line: Michigan appears to be an ALL party state for ALL recordings.

        Sincerely yours,
        Sue
        ________________________
        Sue Sarkis
        Sarkis Detective Agency

        (est. 1976)
        PI 6564
        _www.sarkispi.com_ (http://www.sarkispi.com/ <http://www.sarkispi.com/> )

        1346 Ethel Street
        Glendale, CA 91207-1826
        818-242-2505
        818-242-9824 FAX

        "one Nation under God"

        If you can read this, thank a teacher. If you can read it in English, thank
        a military veteran !

        ************************************** See what's free at
        http://www.aol.com <http://www.aol.com>

        [Non-text portions of this message have been removed]
      • Jim Parker
        Is there any
        Message 3 of 22 , Jul 2, 2007
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          <<<< what in the heck does Arbonne, a beauty line, have to do with
          investigative work, and why are you here, getting advice from us? >>>>


          Is there any particular reason why they shouldn't? I thought one of the
          purposes of this list was to give advice?

          Jim



          -----Original Message-----
          From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com]
          On Behalf Of Vicki Siedow
          Sent: Monday, July 02, 2007 2:23 AM
          To: infoguys-list@yahoogroups.com
          Subject: RE: [infoguys-list] Is it legal to use a record someone in MN?

          Excuse me, but what in the heck does Arbonne, a beauty line, have to do with
          investigative work, and why are you here, getting advice from us? People,
          please check who you're working with here.

          Vicki Siedow
          Siedow & Associates Investigations
          & Legal Support Services
          2629 Foothill Blvd. #262
          La Crescenta, CA 91214
          Los Angeles County
          CA PI License # 22852
          800.448.6431 toll free
          818.242.0130 local
          818.688.3295 fax
          <http://siedow.lawandorder.com/ <http://siedow.lawandorder.com/> >
          http://Siedow.LawAndOrder.com <http://Siedow.LawAndOrder.com>
          <mailto:Siedow@... <mailto:Siedow%40LawAndOrder.com> >
          Siedow@... <mailto:Siedow%40LawAndOrder.com>
          Member NCISS, IWWA

          Need economical legal help?
          Concerned about Identity Theft?
          Check the links on my site, or contact me directly.

          _____

          From: infoguys-list@yahoogroups.com <mailto:infoguys-list%40yahoogroups.com>
          [mailto:infoguys-list@yahoogroups.com
          <mailto:infoguys-list%40yahoogroups.com> ]
          On Behalf Of Dawn Ek
          Sent: Sunday, July 01, 2007 1:31 PM
          To: infoguys-list@yahoogroups.com <mailto:infoguys-list%40yahoogroups.com>
          Subject: Re: [infoguys-list] Is it legal to use a record someone in MN?

          That absolutely helps. Thank you so much for a quick response!
          Take Care,

          Dawn Ek
          Arbonne Consultant
          507.280.0579
          507.421.0730
          ID 16607737
          dawnek@rapidwebllp. <mailto:dawnek%40rapidwebllp.com> com
          We can't do much about the length of our lives, but we can do plenty about
          its width and depth... - Evan Esar

          -------Original Message-------

          From: david jones
          Date: 7/1/2007 11:04:59 AM
          To: infoguys-list@ <mailto:infoguys-list%40yahoogroups.com> yahoogroups.com
          Subject: Re: [infoguys-list] Is it legal to use a record someone in MN?

          It will depend on how the recorder was used. If it was used to record a
          transmission" such as a phone conversation, then it is a federal violation
          and will fall under FCC guidelines. Often times investigators will use them
          as an "aid memoir" so to speak to assist them in writing a statement. If the
          statement is sworn it can be considered a pretty good piece of evidence
          providing the creditability of the person providing the statement is on the
          up and up. It usually all boils down to how the conversation was recorded,
          and of course, you should talk to a state licensed attorney for proper
          guidance. Hope that helps.

          Best Regards,

          Steve

          dawnek71 <DawnEk@rapidwebllp. <mailto:DawnEk%40rapidwebllp.com> com> wrote:
          Is it legal and adminisable in
          court to use a digital voice recorder in
          Minnesota. Where can I find the answer?
          TIA,
          Dawn

          [Non-text portions of this message have been removed]
        • Jim Parker
          Although you ve received responses ranging from excellent to the
          Message 4 of 22 , Jul 2, 2007
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            <<<< Is it legal and adminisable in court to use a digital voice recorder
            in Minnesota. >>>>


            Although you've received responses ranging from excellent to the truly
            preposterous, the correct answer is: "it depends."

            Your inquiry begs more questions than it does answers. Everything would
            depend on exactly how you planned on using the recording device, who would
            be aware of the recording and a variety of other factors.

            With the little you have provided, it would be impossible for anyone to give
            you a "yes" or "no" answer.

            Jim



            -----Original Message-----
            From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com]
            On Behalf Of dawnek71
            Sent: Sunday, July 01, 2007 12:31 AM
            To: infoguys-list@yahoogroups.com
            Subject: [infoguys-list] Is it legal to use a record someone in MN?

            TIA,
            Dawn
          • suesarkis@aol.com
            Jim, Betteye and all - The question is not about court opinion, it is about published law. My answer does not dispute the fact that some courts have handed
            Message 5 of 22 , Jul 2, 2007
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              Jim, Betteye and all -

              The question is not about court opinion, it is about published law. My
              answer does not dispute the fact that some courts have handed down opinions that
              such activity is permissible, but the published law continues to state that the
              activity is illegal - this has not changed in spite of what some state
              courts may have said.

              The comments about judicial opinion cloud the original question and serve
              little more than confusing information. In contrast, I stuck with the original
              question and I wholeheartedly stand by my NON-LAWYER answer. The published
              law in Michigan deems this activity "illegal".

              It is also important to note that Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct.
              App. 1982), as quoted above, was "ONLY ONE COURT'S OPINION" and is not
              representative of broad authority for everyone to follow. THIS DOES NOT CHANGE
              THE WORDING OF THE LAW and obviously the lawmakers have had plenty of time
              since 1982 to change the law had they agreed.

              The state Supreme Court stated in a July 1999 ruling that a participant in a
              conversation "may not unilaterally nullify other participants' expectations
              of privacy by secretly broadcasting the conversation" and that the overriding
              inquiry should be whether the parties "intended and reasonably expected that
              the conversation was private." Therefore, it is likely that a recording party
              may not broadcast a recorded conversation without the consent of all
              parties. Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999).

              Although Jim pointed out (as did I) decisions that appear to support the
              notion that one can, in some instances, record conversations, and while some
              courts have obviously conflicted in their opinions as to the permissiveness of
              the law, Betteye's question was related to what the law “says”. Courts do not
              always support the letter of the law which often leads to statutory changes,
              but this has not happened as of yet.
              As it currently stands the law is still clear that one cannot record a
              conversation in the State of Michigan, even if he is a consenting party, when
              other parties to the conversation have not given consent.

              I maintain that the definition of “eavesdropping” extends to recording
              conversations to which you are a part based on the Supreme Court ruling.

              “Eavesdrop” or “eavesdropping” means to overhear, record, amplify or
              transmit any part of the private discourse of others without the permission of all
              persons engaged in the discourse. Neither this definition or any other
              provision of this act shall modify or affect any law or regulation concerning
              interception, divulgence or recording of messages transmitted by communications
              common carriers.”

              Ambiguity abounds in Michigan !!


              Sincerely yours,
              Sue
              ________________________
              Sue Sarkis
              Sarkis Detective Agency

              (est. 1976)
              PI 6564
              _www.sarkispi.com_ (http://www.sarkispi.com/)

              1346 Ethel Street
              Glendale, CA 91207-1826
              818-242-2505
              818-242-9824 FAX

              "one Nation under God"

              If you can read this, thank a teacher. If you can read it in English, thank
              a military veteran !



              ************************************** See what's free at http://www.aol.com


              [Non-text portions of this message have been removed]
            • Jim Parker
              Message 6 of 22 , Jul 2, 2007
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                <<<< It is also important to note that Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982), as quoted above, was "ONLY ONE COURT'S OPINION" and is not representative of broad authority for everyone to follow. THIS DOES NOT CHANGE THE WORDING OF THE LAW >>>>

                And no one would expect it to. It's not the court's job to change the wording of the law, it's the court's job to INTERPRET the wording of the law.

                As it is, in Sullivan v. Gray, the appeals court noted that:

                "We believe the statutory language, on its face, UNAMBIGUOUSLY EXCLUDES PARTICIPANT RECORDING from the definition of eavesdropping by limiting the subject conversation to "the private discourse of others".

                Even in the case you mention, Dickerson v. Raphael, the court noted that Dickenson's daughter MAY HAVE BEEN WITHIN HER RIGHTS TO RECORD THE CONVERSATION HERSELF, but it was the involvement of a third party (Sally Jessy Raphael's sound technician) making the actual recording that violated the statute.

                You'll note that that's precisely what I said in my earlier response (see my previous post below).

                So your statement of " Bottom line: Michigan appears to be an ALL party state for ALL recordings." is entirely incorrect.

                Jim


                -----Original Message-----
                From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com] On Behalf Of Jim Parker
                Sent: Monday, July 02, 2007 12:33 PM
                To: infoguys-list@yahoogroups.com
                Subject: RE: [infoguys-list] Is it legal to use a record someone in MN?

                <<<< Bottom line: Michigan appears to be an ALL party state for ALL
                recordings. >>>>


                Not quite, Sue. Michigan is one of those odd exceptions which looks on the
                surface to be an all party state, but case law has decreed otherwise.

                In order to make sense of the statute, you must first read how Michigan
                defines "eavesdrop" or "eavesdropping"

                750 §539a(2))

                (2) “Eavesdrop” or “eavesdropping” means to overhear, record, amplify or
                transmit any part of the PRIVATE DISCOURSE OF OTHERS without the permission
                of all persons engaged in the discourse. [emphasis added]

                The key phrase in there is "private discourse of others"

                Michigan courts have held that any conversation you are a party to is not a
                conversation "of others" and can therefore be recorded.

                If, however, you were listening (and/or recording) the conversation on an
                extension phone, but were not a party to the actual conversation, even if
                one of the parties knew of the recording, that would violate the statute.

                In other words, parties can record their OWN conversations, but if a third
                party records it or is involved in the recording of it, it's illegal.

                I believe you'll find the relevant case law in: Sullivan v Gray, 324 N.W.2d
                58 (Mich. Ct. App. 1982), which concludes:

                "We believe the statutory language, on its face, unambiguously excludes
                participant recording from the definition of eavesdropping by limiting the
                subject conversation to "the private discourse of others". The statute
                contemplates that a potential eavesdropper must be a third party not
                otherwise involved in the conversation being eavesdropped on."

                It's not a particularly well written law.

                Jim
              • Bob Hrodey
                ... Not to mention the fact that case law controls, not the statutory law. The law is a living thing and constantly evolves by case law. If you doubt it, try
                Message 7 of 22 , Jul 2, 2007
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                  Jim Parker, wrote the following at or about 7/2/2007 1:36 PM:
                  > <<<< It is also important to note that Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982), as quoted above, was "ONLY ONE COURT'S OPINION" and is not representative of broad authority for everyone to follow. THIS DOES NOT CHANGE THE WORDING OF THE LAW >>>>
                  >
                  > And no one would expect it to. It's not the court's job to change the wording of the law, it's the court's job to INTERPRET the wording of the law.
                  >
                  > As it is, in Sullivan v. Gray, the appeals court noted that:
                  >
                  > "We believe the statutory language, on its face, UNAMBIGUOUSLY EXCLUDES PARTICIPANT RECORDING from the definition of eavesdropping by limiting the subject conversation to "the private discourse of others".
                  >
                  > Even in the case you mention, Dickerson v. Raphael, the court noted that Dickenson's daughter MAY HAVE BEEN WITHIN HER RIGHTS TO RECORD THE CONVERSATION HERSELF, but it was the involvement of a third party (Sally Jessy Raphael's sound technician) making the actual recording that violated the statute.
                  >
                  > You'll note that that's precisely what I said in my earlier response (see my previous post below).
                  >
                  > So your statement of " Bottom line: Michigan appears to be an ALL party state for ALL recordings." is entirely incorrect.

                  Not to mention the fact that case law controls, not the statutory law.
                  The law is a living thing and constantly evolves by case law.

                  If you doubt it, try arguing a case in a court using outdated law and
                  watch the judge (if they catch you) hand you your head. I've seen it
                  happen to clients/friends who missed a cite while Sheperdizing a case.
                  It ain't pretty.

                  Granted, one Court's ruling (provided it's a trial court) does not set
                  precedent anywhere but that particular court. An appellate court,
                  however does set precedent in that district and the state supreme court
                  sets it for the state, etc. Again, these can be treacherous waters in
                  which to tread and your best bet is to pay for a legal opinion based
                  upon your factual situation. The only think black and white in the law
                  what's printed in the law books and that, as you know, is subject to
                  varying opinions depending on where in the state you are and at what
                  point in time.


                  --
                  Enjoy,

                  Bob
                  _______________________________________________________________________
                  Hrodey & Associates Established 1977
                  Post Office Box 366 Member of NALI, ASIS, FBINAA, NAPPS
                  Woodstock, IL 60098-0366 NCISS, Assoc Det of IL & P.A.W.L.I.
                  Licensed in IL & WI (815) 337-4636 Voice 337-4638 Fax
                  e-mail: inquiry@... or rth@...
                  Illinois License 115-000783 Wisconsin 8045-063
                • ceecee lynn
                  I m not eavesdropping on anybody. I m sharing what I know about the law. I m a bystander learning law. Is that a crime to learn something for my country? No.
                  Message 8 of 22 , Jul 2, 2007
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                    I'm not eavesdropping on anybody. I'm sharing what I know about the law. I'm a bystander learning law. Is that a crime to learn something for my country? No. It's not. If you don't want me in here, I'll cancel out my subscription with you people and that's that. I don't need trouble makers making any legal problems for me when I only wanted to learn something. You people are very rude. Do you know that. And I certainly don't appreciate the idle threats of imprisonment, because I'll refer this site over to my local detective bureau for further investigations. I'm a snitch for the law. I support the law. Ok? My God. You people are nutty. Good bye. I don't need your abusive talk. Cindi.


                    ---------------------------------
                    TV dinner still cooling?
                    Check out "Tonight's Picks" on Yahoo! TV.

                    [Non-text portions of this message have been removed]
                  • Bob Hrodey
                    ... Did I miss something? Don t seem to recall anyone really coming down all that hard on Cindi. Guess this is Darwin in Action -- Enjoy, Bob
                    Message 9 of 22 , Jul 3, 2007
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                      ceecee lynn, wrote the following at or about 7/2/2007 2:57 PM:
                      > I'm not eavesdropping on anybody. I'm sharing what I know about the law. I'm a bystander learning law. Is that a crime to learn something for my country? No. It's not. If you don't want me in here, I'll cancel out my subscription with you people and that's that. I don't need trouble makers making any legal problems for me when I only wanted to learn something. You people are very rude. Do you know that. And I certainly don't appreciate the idle threats of imprisonment, because I'll refer this site over to my local detective bureau for further investigations. I'm a snitch for the law. I support the law. Ok? My God. You people are nutty. Good bye. I don't need your abusive talk. Cindi.
                      >

                      Did I miss something? Don't seem to recall anyone really coming down
                      all that hard on Cindi.

                      Guess this is "Darwin in Action"<g>

                      --
                      Enjoy,

                      Bob
                      _______________________________________________________________________
                      Hrodey & Associates Established 1977
                      Post Office Box 366 Member of NALI, ASIS, FBINAA, NAPPS
                      Woodstock, IL 60098-0366 NCISS, Assoc Det of IL & P.A.W.L.I.
                      Licensed in IL & WI (815) 337-4636 Voice 337-4638 Fax
                      e-mail: inquiry@... or rth@...
                      Illinois License 115-000783 Wisconsin 8045-063
                    • Robert Bryan
                      Bob, Guess your right. I haven t seen anyone coming down that hard either. Oh well, thats life. Have a great 4th everyone, be safe & careful out there. Night
                      Message 10 of 22 , Jul 3, 2007
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                        Bob,

                        Guess your right. I haven't seen anyone coming down that hard either. Oh well, thats life.

                        Have a great 4th everyone, be safe & careful out there.

                        Night Owl Investigations www.nightowlinvestigations.com

                        Robert Bryan
                        Owner/Investigator Night Owl Investigations
                        P.O. Box 19137
                        Panama City Beach, FL 32417
                        nightowl1@...
                        gulfcoastpi@... tel:
                        fax:
                        mobile: 850-522-8010
                        850-522-0704
                        850-527-0215




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