Videotaping an event or conversation and/or recording a telephone conversation can violate the Maryland Wiretap law and can result in severe criminal as well as civil penalties.
Before you embark on either videotaping an event or conversation and/or recording a telephone conversation, make sure you have a clear understanding of your rights as well as the rights of the person you are recording. This article will attempt to explain this area of the law but is not meant to be legal advice and before you endeavor to pursue any of the activities discussed in this article you should obtain competent legal advice from your attorney.
While most people understand that wiretapping involves the government secretly listening to your phone calls, emails and meetings in order to investigate crime, the wiretap laws both federal and state are very comprehensive and also regulate private videotaping of an event or conversation and/or recording a telephone conversation.
The federal wiretap law is contained in Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (1979, 1990 Cum.Supp.) and provides uniform minimum standards governing the interception and use of oral, wire, and electronic communications in connection with the prosecution of certain criminal offenses. The federal act seeks to protect the privacy of the individual while at the same time aiding in the enforcement of the criminal laws. United States v. Kahn 415 U.S. 143; Title III requires an effectuating state law before it can be applied within the state. State v. Seigel 266 Md. 256, 292 A.2d 86 (1972).
The state law may not be less but may be more restrictive than the federal law. 18 U.S.C. § 2516(2); Ricks 312 Md. at 14. The Maryland Act was modeled on the federal act and closely tracks its provisions; however, the Maryland legislature has made some of the provisions of the State Act more restrictive than the federal law. See Woods v. State 290 Md. 579, 583, 431 A.2nd 93 (1981)
Maryland Annotated Code Courts and Judicial Proceedings Article § 10-402. contains the Maryland wiretap law. Part of the law that applies to individuals as opposed to the police is outlined below.
(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or
(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.
(b) Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.
(4) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State.
(5) (Body camera exception)- (i) It is lawful under this subtitle for a law enforcement officer in the course of the officer’s regular duty to intercept an oral communication if:
- The law enforcement officer initially lawfully detained a vehicle during a criminal investigation or for a traffic violation;
- The law enforcement officer is a party to the oral communication;
- The law enforcement officer has been identified as a law enforcement officer to the other parties to the oral communication prior to any interception;
- The law enforcement officer informs all other parties to the communication of the interception at the beginning of the communication; and
- The oral interception is being made as part of a video tape recording.
Definitions of the terms used in the statute are located in Maryland Annotated Code Courts and Judicial Proceedings Article § 10-401.
(5) (i) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.
(ii) “Electronic communication” does not include:
- Any wire or oral communication;
- Any communication made through a tone-only paging device; or
- Any communication from a tracking device.
(8) “Electronic, mechanical, or other device” means any device or electronic communication other than:
- (i) Any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof, (a) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; or
(10) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
(i) “Oral communication” means any conversation or words spoken to or by any person in private conversation.
(ii) “Oral communication” does not include any electronic communication.
(18) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.
Civil liability as opposed to the criminal liability outlined above, meaning a lawsuit for damages for violation of the wiretapping statute is contained in Maryland Annotated Code Courts and Judicial Proceedings Article § 10-410
(a) Civil liability. — Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:
- (1) Actual damages but not less than liquidated damages computed at the rate of $ 100 a day for each day of violation or $ 1,000, whichever is higher;
- (2) Punitive damages; and
- (3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
(b) Defense. — A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.
Wiretap law with regard to phone conversation
- Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record a phone conversation without the permission of all the parties. Under Maryland law and contrary to federal law, for example, interception of communications is only authorized if consent of allparties to the interception is obtained. Miles 365 Md. At 508, 781 A.2nd.at 798 (noting that before a communication may be recorded or intercepted, Maryland requires consent of all parties);Perry v. State 357 Md. 37, 60-62,741 A.2nd.1162,1175-76 (1999) (noting the longstanding interest in Maryland in protecting the conversations of private individuals); Mustafa, 323 Md. 65, 74, 591 A.2d 481, 485 (1991) (“[t]he two-party consent provision of the Maryland Act is aimed at providing greater protection for the privacy interest in communications than the federal law.”). Requiring the consent of all parties is one example of the Legislature’s intent to establish strict protections for the privacy interests of the citizenry
- Telephone conversations, are wire rather than oral communications, and are protected generally regardless of the speakers’ expectation of privacy.
- If you call a business and they record your phone conversation without your consent, then the business may violate the wiretap statute. Schmerling v. Injured Workers Insurance Fund 368 Md 434, 795 A.2nd 715 (2002).
- The use of extension phones to listen to a phone conversation does not violate the wiretap statute. Adams v. State 289 Md 221,424 A.2nd.344 (1981). The Maryland Legislature did not intend to place a severe restriction on the ordinary usage by subscribers of telephone extensions by denying the subscriber the right to allow a family member, an employee, a friend, or the police to listen to a conversation to which the subscriber is a party.
- The use of a speaker phone, which would allow anyone in the room to hear the communication does not violate the wiretap statute. Adams v. State 289 Md 221,424 A.2nd.344 (1981)
- A person leaving a voicemail message or otherwise on notice of the recording is deemed to consent by allowing the recording.
Wiretap law with regard to video or tape recording of events and the conversation that is incidental to the event
- The Maryland Wiretapping and Electronic Surveillance Act does not regulate or prohibit video recordings without sound. Ricks v. State, 312 Md. 11, 15-16, 20-24, cert. denied, 488 U.S. 832 (1988).
- Invasion of privacy statutes can apply with regard to the video recording with or without sound.
- An invasion of privacy occurs when there is an intentional intrusion upon another person’s solitude, seclusion, private affairs or concerns in a manner which would be highly offensive to a reasonable person.
- Matter publicized would be highly offensive to a reasonable person and not of legitimate concern to the public.
- However, the audio part of a video recording is regulated by the Maryland Wiretap statute. Oral communication” under § 10-401 of the Wiretap Act means “any conversation or words spoken to or by any person in private conversation.” Thus, when an oral communication is intercepted, determining whether a violation of the Wiretap Act occurred hinges on a determination that at least one of the parties had a reasonable expectation of privacy. Fearnow v. The Chesapeake & Potomac Telephone Company of Maryland 342 Md 363, 676 A.2d.65 (1996)
- As for the audio recording in this case, statements made to a stranger motorist with whom one has been involved in an accident, or to an investigating police officer, are not made “in private conversation.” Maryland Code (1973, 2013 Repl. Vol.), § 10-401(13) (i). The recording, therefore, was not illegal, and the audio (as well as the video) is admissible.
- Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record any private conversation without the permission of all the parties.
- Recording with criminal or tortuous purpose is illegal, regardless of consent.
- The state also prohibits the recording and disclosure of images intercepted in violation of its privacy laws. Violators can face both civil and criminal penalties.
- Reasonably conducted non-intrusive surveillance and the taping thereof is lawful. Often used in litigation surveillance and films done in a public place are not covered by the Wiretap statute. There is no expectation of privacy in a public space. Surveillance inside their house would be an invasion of privacy. Surveillance and recording someone in their yard connected to their house might be a closer call.
- In-person conversations: The state requires all parties to a conversation to give consent before one can record any private oral conversation. Md. Code Ann., Cts. & Jud. Proc. § 10-402. State courts have interpreted the laws to protect communications only when the parties have a reasonable expectation of privacy, and thus, where a person in a private apartment was speaking so loudly that residents of an adjoining apartment could hear without any sound enhancing device, recording without the speaker’s consent did not violate the wiretapping law. Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997). To determine whether there was a reasonable expectation of privacy in the statements overheard and recorded in a different dwelling unit, apply the two-pronged inquiry applicable to search and seizure cases set forth in Katz v. United States 389 US. 347,361, 88 S.Ct. 507. First, whether there was exhibited an actual, subjective expectation of privacy with regard to the statements. If we answer that question in the affirmative, then ask whether that expectation is “one that society is prepared to recognize as `reasonable.'” at 361, 88 S.Ct. at 516.It is obvious that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” 389 US. 347,351, 88 S.Ct. at 511. There is no expectation of privacy in statements made in his apartment that were shouted so loudly as to be overheard by persons in the adjacent apartment. While normally, a person is in his own home raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to recognize his privacy.” United States V. Taborda 635 F.2nd 131,138. However, when choosing to shout, it could not have been intended as words spoken in private. However, if a person is standing on a busy corner, and yelling through a megaphone about how the world is coming to an end, he probably does not expect his words to be private, so he can hardly object if you whip out your smartpen and record some of his pearls of wisdom. On the other hand, when you sit down to have a glass of wine with your best friend, she might be surprised to discover that you’re wearing a wire.
- The state’s surveillance and privacy law also prohibit using a camera on private property to secretly record or observe those inside. Md. Crim. Law §§ 3-903. A person who is viewed in violation of these statutes can also file a civil suit to recover damages. Violators of the hidden camera law can face misdemeanor charges with penalties that include up to one year in jail and a $2,500 fine. Md. Crim. Law §§ 3-901, -902, -903.
- It is a misdemeanor to use a hidden camera in a bathroom, dressing room or any area where it would be reasonable to believe the person would not be visible to the public. Md. Crim. Law §§ 3-901, -02
- video-only surveillance or “Nanny-cams,” are legal in Maryland
- When in outdoor public spaces where you are legally present, you have the right to capture any image that is in plain view. That includes pictures and videos of federal buildings, transportation facilities (including airports), and police officers.
- When you are on private property, the property owner sets the rules about the taking of photographs or videos. If you disobey property owners’ rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
- Dashcams are legal in Maryland. there is no law prohibiting the installation of an aftermarket camera inside a vehicle. However, beware of laws that prohibit the obstruction of the view through the windshield. See Maryland Transportation Code §§ 21-1104 (c) and (d. There are privacy concerns as well. If the dashcam is also recording audio, you must be careful not to run afoul of your state’s “wiretapping” laws. All states have, in some form or another, restricted recording private conversations. Because your personal vehicle is a private place, you may have to get the consent of all passengers before recording audio. This could be problematic if the dashcam begins recording as soon as the engine is started. Using a dashcam to record video on public property, such as streets and parking areas, is almost always permitted as there is little to no expectation of privacy in public areas.
- Installing Ring Doorbell service that automatically records anyone who approaches the front door of your house, including audio recording which allows a conversation with anyone who rings the doorbell to be recorded in the cloud, may violate wiretapping laws Recording the audio could be illegal in Maryland as an “all-party consent” state,
- Recording an on-duty police officer (both video and audio) is permitted as long as you do not interfere with the officer’s duties. In 2010, a judge threw out a case where a man was arrested for taping his own traffic stop and posting it on the internet., and in 2012, the Baltimore Police Department released a directive stating that police officers cannot prohibit videotaping of law enforcement activities in public. However, if the police suspect that a dashcam may contain evidence of a crime, the police may temporarily take the dashcam, but may not view the video until a warrant is granted. Police should not order you to stop taking pictures or video. Under no circumstances should they demand that you delete your photographs or video.
- Police officers may order citizens to cease activities that are truly interfering with legitimate law enforcement operations. In general, a court will trust an officer’s judgment about what is “interfering” more than yours. So, if an officer orders you to stand back, do so.
- If the officer says he/she will arrest you if you continue to use your camera, in most circumstances it is better to put the camera away and call the ACLU for help, rather than risking arrest.
- Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves.
- You have the right to videotape and audiotape police officers performing official duties in public. That means you can record an officer during a traffic stop, during an interrogation, or while he or she is making an arrest.
- You can record people protesting or giving speeches in public.
- If You Are Stopped or Detained for Taking Photographs or Videos always remain polite and never physically resist a police officer. If stopped for photography, ask if you are free to go. If the officer says no, then you are being detained, something an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal. If you are detained, politely state that you believe you have the right to take pictures or video and that you do not consent to the officer looking through or deleting anything on your camera. But if the officer reaches for your camera or phone, do not resist. Simply repeat that you do not consent to any search or seizure. You don’t want to invite a charge for “resisting arrest.”
Disclosures of private emails
- Because the provision of the statute dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” consent likewise is required to disclose the contents of text or e-mail messages sent between wireless devices. Emails, instant messages and the like are deemed to have been illegally “intercepted” only if they are electronically intercepted during the transmission of the communications.
What if, legal in state gathered in, but would be illegal if gathered in Maryland
- In the case of telephone conversations, even if you live in a one-party state, be careful about recording conversations with people in other states. If the other person lives in an all-party consent state, a court might decide that you had to get his or her consent regardless of what your state law says.
- If Videotaping an event or conversation and/or recording a telephone conversation are valid in the state they were obtained, but invalid under Maryland law, can they be used in a Maryland Court. In Mohammed Mustafa etal v. State of Maryland 323 Md. 65, 591 A.2d 481 (1991), The single question presented is whether the Maryland Wiretap and Electronic Surveillance Act, Maryland Code (1989 Repl. Vol.), §§ 10-401 through 10-414 of the Courts and Judicial Proceedings Article (the Maryland Act), “precludes the admission in evidence in a Maryland court of the contents of an electronically recorded telephone conversation between a person in the District of Columbia and a person in Maryland if (1) the recording was made by the person in the District of Columbia without the knowledge and consent of the other person and without the authorization required by § 10-408 [of the Courts Article] but (2) the making of the recording was permissible under the law of the District of Columbia.” Thus, evidence intercepted pursuant to more lenient statutory enactments of other jurisdictions must comply with Maryland’s more restrictive standards before it may be lawfully disclosed in a Maryland court. In the words of § 10-407(f), law enforcement officers of other jurisdictions may only disclose the contents of a communication or the derivative evidence in a proceeding in this State if it “would have been lawful for a law enforcement officer of this State pursuant to § 10-402(c)(2) of this subtitle to receive.” See Sanders v. State 57 Md. App. 156, 469 A.2d 476 (1984). It is plain that the legislative intent in the Maryland Act was to inhibit the disclosure in Maryland courts of the content of communications not intercepted in conformity with the public policy of this State as evidenced by the provisions of its governing law. In other words, the Maryland Act precludes the admission of a communication intercepted, no matter where, under circumstances inconsistent with this State’s substantive law. Mohammed Mustafa etal v. State of Maryland 323 Md. 65, 591 A.2d 481 (1991).
- Maryland Annotated Code Courts and Judicial Proceedings Article § 10-407 provides several exceptions to this case.
This article will attempt to explain this area of the law but is not meant to be legal advice and before you endeavor to pursue any of the activities discussed in this article you should obtain competent legal advice from your attorney.
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