An Overview of Recording Laws in Maryland
Understanding the intricacies of state-by-state recording statutes is critical for audio and video field professionals. Understanding how a particular state’s laws may affect your project(s) could save you a headache, and also possibly save you from a lawsuit! In the meantime, it also gives you a LOT to learn…and…to write about.
The state of Maryland, being the 7th state to ratify the Constitution of the United States, has a long and complex history. All Maryland recording laws must be interpreted within the context of state statutes, legal precedent, policies, and constitutional limitations.
More recent but equally as important though, are the recent changes to Maryland’s wiretapping laws. Just prior to the turn of the century in Maryland, the biggest communication law to change simply added audiovisual communications to the list of wiretap-able communications. This gave Maryland audio/video field professionals the same rights as other states in the region. As big as that might have been at the time, at least we were still able to get on with relatively low-key lines of red tape.
In the years since then though, there have been some rather unpredictable changes to Maryland’s wiretap laws. For starters, when the Maryland legislature expanded the state’s prohibition against releasing intercepted communications to new forms of communications technology, while directly adopting some of the federal regulations, it left out federal exceptions for consent.
Perhaps a little bit of history here can shed some light. In a case from the 70s , the court ruled that the statute without a consent exception was subject to strict scrutiny and necessary to protect Maryland’s interest in preventing the invasion of privacy. When the legislature directly adopted the federal rules, they left the federal rule out. It is unknown whether the legislature simply forgot to delete or adopt the exception for the consent of parties communicating, or whether the Maryland legislature tacitly agreed to banning consent as a way to prevent intercepts. Whatever the reason is, the legislature created a statutory gap, which case law has filled over the years.
Recent case law provides that any such recordings may be done if there is express or implied consent of one of the parties. While this was challenged in the 90s, the court upheld the use of the implied consent doctrine for the interpretation of Maryland’s wiretap laws. More cases have ruled the same since. In addition, any such recording may be done with the consent of the person who sets up or controls the recording device.
It is also important to note that Maryland has retained a two-track reporting system which protects the secret recording of communications. Therefore, even silent consent is adequate to satisfy both the state and federal laws.
As mentioned, Maryland state laws need to be viewed in the context in which they were intended to be applied. As such, Maryland wiretap laws protect only communications where there is an expectation of privacy. So this would not bar the recording of MDOT toll road cameras and the like, where people do not have any reasonable expectation of privacy.
The Two-Party Consent Requirement
Maryland mandates a two-party consent rule for all types of audio and video recordings. This means that if you are in a private or public place and don’t have the permission of all parties to record an interaction, you are opening yourself up to potential civil and criminal liability.
In most cases, you need to get permission from others before recording them. This is especially true in private places, like homes, where people would have a reasonable expectation of privacy. But even in public places, there could be issues that arise from recording other people without their permission.
The only exception to this rule is for telephone conversations that are being recorded by one of the participants to the conversation. As long as one party to the phone conversation is aware that it is being recorded, there is no need for each party to consent to the recording. If both parties agree, there is also no issue with recording the phone call.
The penalties for violations of the two-party consent rule in Maryland vary depending on the specific circumstances of each case. A first-time offense is classified as a misdemeanor that can come with up to five years in prison and a fine up to $10,000. Any subsequent offense would increase the penalty to up to 10 years in prison and a fine of up to $20,000. Civil actions are also possible, as those that violate the statute can be sued for damages. These damages are very open-ended, so there’s no telling how much or how little a person may be ordered to pay as a result of the two-party consent rule.
As you can see, it’s imperative that you obtain permission to record if you want to stay in compliance with Maryland law. Always be sure to ask before recording any audio or video of other people.
Exceptions to the Consent Requirement
Another major exception to Maryland’s two-party consent rule is that at least one party must know about and be involved in making the recording. That means that you can record a conversation you’re having with someone else so long as they know you’re recording. That means gimmicks like accidentally leaving the tape recorder on can cause a big problem for you, and an illegal wiretap. However, the law recognizes that we all have our phones on us these days, and that that makes it normal to hold your phone near someone, or point an audio recording app in their direction. Speaking normally in that situation, and giving up on normal social expectations of distance is not "eavesdropping", and is ok under the law.
Another important exception to the rule that the other party must know is if you consent to the recording and the person recording is in the room with you. If you take a call on your office phone and leave the speaker on for an extended period of time, such as during a meeting, that’s generally considered to be implied consent to the recording, even if you didn’t formally consent. The law also recognizes that most people are aware that they may be recorded if they call a store or other business, and they have given "implied consent" to any recording made while they’re on the line.
The rest of the exceptions are public safety based as opposed to personal convenience based. A person can legally record a phone call if they think that it is necessary to protect human life or physical safety. It seems like the intent here is to allow someone in a dangerous situation to record what’s happening, so the recording can be presented to the police or other authorities after the event. Believe it or not, however, the state does not allow you to use this exception if you’re trying to get evidence of a crime, unless you have a warrant.
All these exceptions are in place to preserve the core intent of the two-party consent rule, which is to prevent people from secretly recording conversations they aren’t taking part in.
Consequences for Illegal Recording
To appreciate the importance of this post and correctly understand your legal position regarding the legality of recording cases for which you may be charged with illegal recording under Maryland law, you must also understand the legal consequences of illegal recording and the penalties/punishments that you could face if convicted of violating the Maryland recording laws. So, it is critical to appreciate that if you are being charged with illegal recording of conversations in Maryland, it is a misdemeanor, which carries a maximum penalty of three years in prison and/or a fine of $10,000, which is a far more serious crime than the number of times that clients come to us for a free consultation on illegal recording could indicate.
While very few cases seem to reach final court disposition, in 2014, the criminal court in Baltimore sentenced a man to 90 days in jail and placed him on probation for six months for illegally recording a conversation without first getting the consent of all parties to the recorded conversation. A district court in Baltimore held a Glendale woman to appear in court on criminal charges for illegally recording a conversation when she did not obtain consent of all parties to the recorded conversation. And in November 2016, the attorney general for Maryland and the sheriff for Harford County got into a heated verbal altercation that was taped with a cellphone. The recorder was charged with illegally recording the altercation because of an apparently incomplete scribbled consent form.
Recording in Public vs. Private Areas
Maryland law distinguishes between public and private spaces when it comes to electronic recording, and understanding these differences is pivotal for anyone looking to avoid legal issues. Public spaces, broadly interpreted, include places accessible to or visible by members of the general public, including the exteriors of offices and businesses and portions of roadways. In many instances, public spaces found on private property are lawful to record in Maryland. For example, many exterior spaces are visible to the public and can be legally recorded from a variety of locations. In a 2013 ruling, Maryland’s highest court even stated that a recording conducted from a public place will not be illegal as long as it remains unobtrusive.
Locations that are not visible to the public , such as private residences, are generally not subject to legal recording without consent. This means that the interior of an office or home, in addition to any private garages or backyards, is off-limits to recordings.
Additionally, the law in Maryland suggests that organizers of large public events have diminished rights to privacy while attending those events. This is due to the idea that once someone has invited the public at large into a certain space, such as at a block party or concert, he or she has forfeited much of his or her right to privacy.
Location is only one factor involved in determining the legality of a recording to Maryland law, so be cautious even in public spaces. If you have been accused of breaking Maryland recording laws, consult with an attorney as soon as possible.
Laws Governing Businesses vs. Individuals
Across the country, employers are increasingly using employee surveillance in a variety of ways. In fact, according to a recent study published by PwC, 70% of companies worldwide are already using or plan to use monitoring technology to collect data on employees.
Maryland is no exception. The state has had to keep up with the times and on both the state level and in the United States District Court for Maryland, the issue of whether and how companies can use monitoring technology without violating Maryland’s wiretap statutes is an ongoing topic of discussion.
What Maryland Laws Govern Employee Surveillance? For businesses under federal jurisdiction, whether or not employee monitoring would result in a violation of the federal wiretap statute (18 USC § 2510 et seq) requires analysis of several factors, including the reasonable expectation of privacy. This is the case regardless of the type of employee monitoring in question, such as bugging conference rooms, recordings of telephone calls or even surveillance of employee emails. But what about Maryland, where wiretap laws are stricter than federal law?
State wiretap laws—including Maryland’s—are stricter than federal law in that, unlike the federal law, Maryland’s wiretap laws do not allow for consent by only one party to a conversation. Maryland wiretap laws require the consent of all parties to the communication. In other words, two-party consent. In addition to the traditional "wiretap" methods outlined above, the Maryland wiretap laws also apply to computer systems. Under the Maryland wiretap law, a company cannot intercept and decipher employee communications on a private computer system in order to reveal the contents of a communication or a stored communication "where such person or entity or one of its officers, employees, or agents is not a party to the communication."
Employer Responsibilities If a company in Maryland wishes to employ surveillance of employees, the consent of both the employer and the employee is required. There is a series of cases in the United States District Court for Maryland that has addressed whether certain kinds of surveillance by an employer requires consent. The primary factor addressed in nearly all of those cases is whether the employer’s actions would have been detected, meaning that an employee under similar circumstances could reasonably be expected to discover the surveillance.
Key Considerations Several issues are relevant to this consideration including: Even if an employee discovers the surveillance, the question remains whether the employee was aware of the potential surveillance when he or she began the particular communication, either via phone or computer system. If employed before the surveillance began, the employee should be so advised during the onboarding process and/or by an explicit policy germane to the surveillance.
Practice note: because it isn’t enough to simply inform employees of the company’s surveillance policy during the onboarding process, or yearly thereafter, we suggest sending out a memorandum that is co-signed by the employee that explicitly sets forth the extent and scope of the surveillance that the company employs.
Obeying Maryland’s Recording Laws on a Practical Level
When recording conversations or telephone calls, users should always remember that the Party A and Party B must have each other’s consent to record it. While it’s always prudent to get the permission of both participants, in Maryland an act of omission demonstrating consent is sufficient to establish such consent.
A good way to establish the consent of others to be recorded is to make it company policy to notify all employees and customers or other persons with whom employees or contractors have telephone or face-to-face contact, such that they are being recorded. This can be accomplished through a sign in the lobby acknowledging that by entering or calling the company their conversation may be recorded. Once the policy is in place, it’s wise to remind employees regularly to advise a person that they are recording a conversation. For telephone conversations, this can simply be added to either the beginning or end of the message.
Expectedly, your risk of liability is proportionate to the amount of notice you give to the other person . For this reason, the Coldwell Banker case may not be an aberration and it could be that informing all customers or potential customers who might call into your business and then telling them at the beginning of the call that you are recording will minimize your risk.
The Coldwell Banker case was somewhat raw because the underlying facts of the case were that a Coldwell Banker Real Estate company recorded a conversation on a landline where the voices of all four of the people in the conversation were heard. The recorded conversation was that of a realtor, a Coldwell Banker customer service representative, a homeowner who was renting out his property, and a Coldwell banker realtor who was out in the field.
When the real estate agent told the Coldwell banker customer service representative, "I’ve got (the homeowner) on the line and I have no idea if he is okay with being recorded, I need to tell him that this is being recorded," the Coldwell banker representative responded "oh yeah." The conversation continued with several other comments being made to the homeowner about recording at which point he apparently consented.