Legal Reference Blog by Renee C. Walsh, Attorney

24/07: Maryland Interception of Communications

Question:

"I have a question relating to the "expectation of privacy" issue. My father was a resident of a nursing home in which the door to his room was always open so anyone could come in at any time. Would it be legal to record conversations made through his speakerphone? The other party knew where my father was and that he was on the speakerphone, but did not know the conversation would be recorded. This is in Maryland, a one-party state.

Thank you!"

Response:

Maryland law is codified within the Maryland Code within the Wiretapping and Electronic Surveillance Evidence category of the laws that bind Courts and Judicial Proceedings, 10-402. Maryland law on this can be located at Maryland Interception of Communications Law or below:

Under the law, § 10-402, it is a 5 year / $10,000 felony 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.

Certain persons are exempt such as operators of switchboards and service providers assessing quality control, those acting pursuant to court order, law enforcement officers in certain circumstances, government agents in certain circumstances, etc.

It is lawful 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.

Maryland prohibits interception, disclosure, and use of of telephone communications unless an exemption applies or all parties to the communication give prior consent. There are legal arguments to be made as to interception versus recording as Maryland law does not prohibit "recording" but rather does prohibit "interception". Furthermore, if the facts present a situation where the parties to the telephone call knew that their conversation would be overheard by others and had an expectation that the conversation would be overheard, then one could argue in defense that the parties did not have an expectation of privacy and in fact impliedly consented to the interception and/or recording.