Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Michigan

Current status

Michigan has a relatively complex legal environment that addresses both illegal interception of communications and illegal surveillance of persons.

In regard to interception of communication, the state law specifically covers online media and the cyber realm. Michigan also has a personal surveillance law, which emphasizes citizen’s right to privacy. The law is focused on unauthorized surveillance that occurs in private places, upon persons entitled to privacy in that places. The state has a voyeurism law, as most states do, which prohibits recording of persons in the nude or otherwise exposed, without their consent.

Impact of law

First, Michigan is an “all parties consent” state. The state law prohibits the interception of any communication without the consent of all the parties. Regarding electronic communications, the law prohibits any person to tap, or make any unauthorized connection, read or copy any message, make unauthorized use, prevent, obstruct, or delay a communication through “any telegraph or telephone line, cable, wire, or any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network”. The law is very inclusive and addresses all instances of illegal eavesdropping, thus expanding the “all parties consent” requirement over electronic communications such as email, text messages, chat content, etc. The law also prohibits recording or eavesdropping upon other persons, where there is a reasonable expectation of privacy. The only exception is that of monitoring a residence for security purposes, at the direction of the owner.

References to Physical TSCM

The law text references “any device” that may be used to illegally eavesdrop on other persons without their consent. We assert that is it the lawmaker’s intention to criminalize the act of eavesdropping, regardless of the means by which it is conducted. “Any device” is in this context a very inclusive term, that describes any available eavesdropping technology.

References to Cyber TSCM

In regard to cyber media, the law is actually very descriptive, using broad definitions and detailed references to possible means of interceptions.

For instance, “computer” is defined as “any connected, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network. Provided that the law covers computers as media of interception, we can assert that cyber means of acquiring computer communications are also subject of the law.

Criminal implications

Illegal eavesdropping on private conversations is considered a felony punishable by up to two years of imprisonment and a fine of up to $2,000. Disclosing and using illegally obtained informations carry the same punishment.

Violations of the electronic communications law carry punishments of up to 2 years in jail and fines with the exception that if the incident resulted in injury or death of a person, the sentence can rise to 4 years in jail.

Eavesdropping in private places is considered a felony punishable by imprisonment for up to 2 years or a fine of max. $2,000.00, or both. For distributing such informations, the punishment can rise to 5 years or a fine of up to $5,000.00, or both.

In any criminal or civil action, proof of the installation in any private place of any surveillance device is considered prima facie evidence.

Civil implications

Any person who has been a victim of illegal eavesdropping or surveillance is entitled to recover from the person who has violated the state law any actual and punitive damages.

Code excerpts

Mich. Comp. Laws 750.539a[1] Definitions.

(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. […]

(3) “Surveillance” means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed.

Mich. Comp. Laws 750.539c[2] Eavesdropping upon private conversation.

Any person who is present or who is not present during a private conversation and who willfully 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.

Mich. Comp. Laws 750.539b[3] Trespassing for purpose of eavesdropping or surveillance.

A person who trespasses on property owned or under the control of any other person, to subject that person to eavesdropping or surveillance is guilty of a misdemeanor.

Mich. Comp. Laws 750 Sec. 539e[4].

Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of sections 539b, 539c or 539d is guilty of a felony, punishable by imprisonment in a state prison not more than 2 years, or by a fine of not more than $2,000.00.

Mich. Comp. Laws 750.539h[5] Civil remedies.

Any parties to any conversation upon which eavesdropping is practiced contrary to this act shall be entitled to the following civil remedies:

(a) An injunction by a court of record prohibiting further eavesdropping.

(b) All actual damages against the person who eavesdrops.

(c) Punitive damages as determined by the court or by a jury.

Mich. Comp. Laws 750.540[6] Use of electronic medium of communication; prohibited conduct; violation as felony; penalty; definitions.

(1) A person shall not willfully and maliciously cut, break, disconnect, interrupt, tap, or make any unauthorized connection with any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network, or a telephone.

(2) A person shall not willfully and maliciously read or copy any message from any telegraph, telephone line, wire, cable, computer network, computer program, or computer system, or telephone or other electronic medium of communication that the person accessed without authorization.

(3) A person shall not willfully and maliciously make unauthorized use of any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network, or telephone.

(4) A person shall not willfully and maliciously prevent, obstruct, or delay by any means the sending, conveyance, or delivery of any authorized communication, by or through any telegraph or telephone line, cable, wire, or any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network.

(5) A person who violates this section is guilty of a crime as follows:

(a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $1,000.00, or both.

(b) If the incident to be reported results in injury to or the death of any person, the person violating this section is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.

(6) As used in this section:

(a) “Computer” means any connected, directly interoperable or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network.

Mich. Comp. Laws 750.539d[7] Installation, placement, or use of device for observing, recording, transmitting, photographing or eavesdropping in private place.

(1) Except as otherwise provided in this section, a person shall not do either of the following:

(a) 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.

(b) 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.

(2) 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.

(3) A person who violates or attempts to violate this section is guilty of a crime as follows:

(a) For a violation or attempted violation of subsection (1)(a):

(i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

Mich. Comp. Laws 750.539i[8] Proof of installation of device as prima facie evidence of violation.

In any criminal or civil action, proof of the installation in any private place of any device which may be used for the purposes of violating the provisions of this act shall be prima facie evidence of a violation of section 539d.

 

[1] Source: http://www.legislature.mi.gov/(S(twdz54lw5ukhxsewrbd2wivt))/mileg.aspx?page=GetObject&objectname=mcl-750-539a

[2] Source: http://www.legislature.mi.gov/(S(j4q3qxsjxddj1plkhb53ppol))/mileg.aspx?page=GetObject&objectname=mcl-750-539c

[3] Source: http://www.legislature.mi.gov/(S(twdz54lw5ukhxsewrbd2wivt))/mileg.aspx?page=GetObject&objectname=mcl-750-539b

[4] Source: http://www.legislature.mi.gov/(S(twdz54lw5ukhxsewrbd2wivt))/mileg.aspx?page=GetObject&objectname=mcl-750-539e

[5] Source: http://www.legislature.mi.gov/(S(twdz54lw5ukhxsewrbd2wivt))/mileg.aspx?page=GetObject&objectname=mcl-750-539h

[6] Source: http://www.legislature.mi.gov/(S(xs5tnekiwseed4dm2v1044rt))/mileg.aspx?page=getObject&objectname=mcl-750-540

[7] Source: http://www.legislature.mi.gov/(S(xrfzmz3qz3kpggncbnovkuws))/mileg.aspx?page=getObject&objectName=mcl-750-539d

[8] Source: http://www.legislature.mi.gov/(S(xrfzmz3qz3kpggncbnovkuws))/mileg.aspx?page=getObject&objectName=mcl-750-539i