In many cases in our daily lives, we want to make sure that we can document what people say to us. Maybe it is for goodwill, maybe it is for our own memory, or maybe it is to try to “prove” that someone is doing or saying something they should not.
The obvious answer and one we see in the movies often, is to just record them. In Maryland, as in many states, that is wiretapping, and it is a crime.
The Maryland Wiretap Act
The Wiretapping Act requires consent from every individual whose words or conversations are being recorded on any electronic or mechanical device, which is usually a phone. To be a criminal act, the wiretapping must be done intentionally and purposefully. The penalties are serious; a court can give prison time for wiretapping someone.
The law does not prohibit videotaping, even if the conversation is also being recorded by the video, so long as the video is taken somewhere that there is no expectation of privacy.
The expectation of privacy is a big exception to the law. For example, if someone is in his or her home screaming out loud and you record his or her voice, there is likely no wiretapping violation. Record someone in a retail store and there is no violation, but put cameras in the bathroom stalls, and there likely is a violation.
Law enforcement is also prohibited from wiretapping, unless they obtain a warrant to do so. If they get a warrant, they can also continue to listen to calls even if the person being recorded crosses state lines.
Problems can arise for third parties. Say, for example, you announce you are recording a conversation to your friend and he says “OK.” Later, your friend puts his mom on the conversation, but she never consented to being recorded. You could be charged with wiretapping her.
Inmate Tries to Suppress Wiretapped Evidence
Of course, most inmates have no expectation of privacy in jail and are specifically told in writing and on their phone calls that they are being recorded. In a recent case, the person the inmate was speaking to put a third party on the phone. The inmate then made incriminating statements to that third party.
When the state tried to present those statements in court, the inmate’s attorney tried to have those recordings thrown out in violation of wiretapping laws because the third party never consented. But wiretapping must be intentional, and in this case, the defendant never demonstrated that the detention center knowingly or willfully recorded the third party or even knew that he was or would be put on the line. There was no evidence, for example, that someone from the detention center was monitoring the call and willfully chose to keep recording once someone who had not consented started speaking.
Burden is on Defendants
Defendants who feel that law enforcement has illegally wiretapped them have a burden to prove the violation because wiretapping, although a crime, is generally not a constitutional violation. With constitutional violations, the court assumes that there was a violation and the state must demonstrate otherwise—a much easier position for defendants.
Know your rights before you record anyone, and know law enforcement’s rights if your conversations are recorded. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss any arrest or criminal charge against you.