August 1, 2012

Summary of statute(s): Under Maryland’s Wiretapping and Electronic Surveillance Act, it is unlawful to tape record a conversation without the permission of all the parties. Additionally, 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.

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).

Electronic communications: Similarly, the statute makes it a felony to intercept any telephone or electronic communication unless all parties give their consent. Md. Code Ann., Cts. & Jud. Proc. § 10-402. 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. Md. Code Ann., Cts. & Jud. Proc. § 10-401.

Hidden cameras: 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. The state’s surveillance and privacy law also prohibits 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.

Criminal penalties: Violations of the wiretapping 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.

Civil suits: The court may award actual and punitive damages, as well as reasonable attorney fees and litigation costs, to anyone whose private communications were recorded or disclosed in violation of the state’s eavesdropping law. MD. Code Ann., Cts. & Jud. Proc. § 10-410.

Disclosing recordings: The state bars the disclosure or use of the contents of any oral, telephone or electronic communication either knowing or having reason to know it was intercepted in violation of the state’s eavesdropping laws. Md. Code Ann., Cts. & Jud. Proc. § 10-402.