Reporter's Recording Guide
Last updated May 2020Compare
Under Maryland’s Wiretap Act, it is unlawful to record any private in-person conversation or any telephone or electronic communication unless you are a party to the conversation and have the permission of all the other parties. Additionally, recording with criminal or tortious 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.Compare
The Maryland Wiretap Act permits a party to any private in-person conversation to record with consent of all parties to that conversation. Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3). Recording is illegal even with full consent if it is done for the purpose of committing any criminal or tortious act. Id.
The consent requirement, however, only applies to a “private conversation,” which the Maryland Court of Appeals — the state’s highest court — has held only includes conversations in which parties have a reasonable expectation of privacy. Md. Code Ann., Cts. & Jud. Proc. § 10-401(13)(i); Agnew v. State, 197 A.3d 27, 35 (Md. 2018). For example, 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 wiretap law. Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997).Compare
Telephone and electronic communications
The Maryland Wiretap Act makes it a felony to record any telephone or electronic communication unless one is a party to the communication and all other parties give their consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3). Telephone conversations are protected by the Wiretap Act regardless of whether the parties have a reasonable expectation of privacy. Fearnow v. Chesapeake & Potomac Tel. Co., 655 A.2d 1, 18 (Md. Ct. Spec. App. 1995), aff'd in part, rev'd in part, 342 Md. 363, 676 A.2d 65 (1996), and abrogated on other grounds by Deibler v. State, 776 A.2d 657 (Md. 2001).
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 from all parties to intercept the contents of text or email messages sent between electronic devices. Md. Code Ann., Cts. & Jud. Proc. § 10-401(5). However, courts have held that an interception must occur at the time the communication is in transit for the Wiretap Act to apply, and thus the law does not apply to a person accessing text messages stored on a phone after they were sent and received. Martin v. State, 96 A.3d 765, 776 (Md. 2014) (noting also that merely accessing texts stored on the cellphone did not require the use of an interception device, which is required for the Wiretap Act to apply).Compare
It is a misdemeanor to use a hidden camera in a bathroom or dressing room in a retail store without the occupants’ consent. Md. Crim. Law § 3-901. The law also prohibits using a camera on private property to secretly record or observe those inside a private residence. Md. Crim. Law § 3-903.
Maryland also bans a person from using a hidden camera to observe or record people in a place where they could be reasonably expected to disrobe, or to observe or record the private body parts of an individual who would reasonable expect that they would not be visible to the public. Md. Crim. Law § 3-902. This prohibition, however, does not apply to recordings done without prurient interests “by or for the print or broadcast media.” Id.Compare
Violations of the wiretap law are felonies punishable by imprisonment for not more than five years and a fine of not more than $10,000. Md. Code Ann., Cts. & Jud. Proc. § 10-402(b).
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.Compare
The court may award actual and punitive damages, as well as reasonable attorney’s fees and litigation costs, to anyone whose private communications were intercepted, recorded or disclosed in violation of the state’s Wiretap Act. Md. Code Ann., Cts. & Jud. Proc. § 10-410.
The court may also award actual damages and reasonable attorney’s fees to anyone who was surveilled in violation of the hidden camera law. Md. Crim. Law § 3-901, -902, -903.Compare
Maryland bars the disclosure or use of the contents of any in-person, telephone or electronic communication either knowing or having reason to know it was recorded or intercepted in violation of the state’s Wiretap Act. Md. Code Ann., Cts. & Jud. Proc. § 10-402(a).
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, has not yet directly addressed the First Amendment right to record.Compare