Eavesdropping, Surveillance, and Giving Consent

The vast amounts, types, and quality of technology is amazing.  If one can dream it, one can make it.  The capabilities, benefits, and applications can be amazing.  They can, however, also be dangerous.

How does technology, specifically the capabilities to record and transmit audio or video information, have an impact in the legal world?  Well, again, while the capabilities are amazing, their implementations are challenging and dangerous.

According to the Constitution, governmental agencies must obtain warrants to search into our person, places, and things when and where we have a “reasonable expectation of privacy.”  The word “reasonable” is critical.  For example, a reasonable person knows that dogs have a much stronger sense of smell and have been used to, in addition to hunting, to sniff out contraband for a long time.  Similarly, binoculars have been used for a long time to help us see further than our naked eyes permit.  The use of such low-tech in information gathering is likely not unreasonably expected.

What about more high-tech gadgets?  What about peeking deeper into one’s privacy with other technology?  The answer is that government agencies need warrants.

Now, what about private citizens?   What if a spouse wants to use secretly placed cameras and recording devices to catch another spouse potentially cheating?  What if one divorced or separated parent wants to implant recording devices into the clothing of his/her child to see and hear what happens when at the home of the other parent?  What if one person wants to record a conversation between two other individuals in another room?  What if one person wanted to install a tracker onto the vehicle of another?  The answers to each of these and in many such cases is that do so is a crime.  It could be a crime for the individual to do it, his/her attorneys to do it, a private investigator to do it, and even a government agent, such as a police officer, if acting without a warrant or lawful authorization.

In Michigan, MCL 750.539a-l sets out the rules, crimes, and punishments involving such actions.  Do not worry parents and spouses; there are some exceptions.  For instance, parents may place a tracking device on a car they own in order to track their minor children.  One may place such tracking devices on his/her own vehicle if he/she is the registered owner.  One may permit the installation of a recording device in a private place to which that person is entitled to private access.

Additionally, in most cases, if one is party to a conversation, he/she may generally record the conversation.  If one is not a party to the conversation, then that person generally may not record it.

The first essential take away from this lesson is that there are complex rules that apply to both governmental agencies and private individuals as well as businesses.  Do not go playing detective too eagerly as you may find yourself facing a criminal charge of civil lawsuit.

Additionally, read the terms of agreement every time you install something onto your smartphones, tablets, computers or other devices.  You may just find out that by installing that cool new application or program, you have given consent to whoever really owns the rights to that application or program to track what you are doing and peek into your privacy.  One no longer has a reasonable expectation of privacy when one waives it by giving consent.