When You May Not Record a Conversation:
Under Michigan law, MCL 750.539(C), any person who uses any device to eavesdrop upon a conversation of another ”without consent of all parties” or who knowingly aids another in the same, is in violation of the law and is guilty of a felony. Basically this means that you cannot put a security camera in your wife’s bedroom to catch the cheater (however, if you have a home security system that records automatically it is not subject to this law).
Also keep in mind that the Federal eavesdropping act 18 U.S.C. § 2511 (1) which basically makes the same action illegal and subject to fines and jail up to 5 years.
However, courts largely allow recording of a conversation between a parent and his or her children, which is done for the purpose of protecting the safety and well-being of the children.
When You May Record:
A conversation, which you are a part of, cannot qualify as eavesdropping, and recording such a conversation does not violate the statutes (both state and federal). See Sullivan v. Gray, 117 Mich. App. 476.
However, keep in mind that the Federal act makes it a crime to use another person to illegally intercept communication. In laymen’s terms, this means that using another person to illegally record (violate the law) does not insulate you from liability.
Also, any recording obtained in violation of the Federal law is not federally bared from being used to impeach a witness (to show a lie).
What About the Interspousal Exception?
Michigan and the Sixth Circuit court have booth refused to allow an interspousal wiretapping exception. See Pollock v. Pollock, 153 F3d 601; Williams v. Williams, 229 Mich. App. 318 Therefore, if you record your spouse, you should always comply with the law and be a part of the conversation, or fit your recording in one of the narrow exceptions mentioned above.
Michigan law explicitly prohibits putting a GPS unit on another person’s vehicle. See MCL 750.539l. This includes your wife’s car if it is not your car alone.
However, there are exceptions to this rule: (1) For parents tracking a child where they own the child’s vehicle; (2) For private investigators; and (3) For leaseholders.
Electronically Stored Information:
Reading email stored on any computer to which you have access (a.k.a. password and consent) is not illegal. However, using a keystroke logger is. Federal law, 18 USC §2701-2720, prohibits using a keystroke logger.
A better way to get data is to include an electronic data provision in any mutual restraining order. This provision should prevent any party, and their agents, from deleting electronic data on any media including computers, cell phones, and external hard drives. Preventing loss of electronic data is key to discovery in any civil case.
E-Discovery—the Hidden Gold Mine:
Any type of electronically sent message usually contains metadata. Metadata is the equivalent of physical media’s hand writing and paper stock—it identifies the medium, sender, date of creation /last modification, the most likely point of origin, and other recipients.
Statutory and Other Links: MCL 750.539; 18 U.S.C. § 2511; Sullivan v. Gray, 117 Mich App 476; MCL 750.539l