Wiretapping and Electronic Surveillance Maryland law prohibits listening to or recording certain conversations over the telephone, conversations across other electronic media, and certain face-to-face communications. It is permissible to listen to a telephone conversation with a speakerphone or an extension, both of which are excluded from the definition of an electronic device. The law prohibits the use of a mechanical device, such as an audio recorder or wiretap, to intercept or divulge the contents of a wire or electronic communication, or a mere private, oral conversation. Law enforcement agencies may bypass the law under certain statutory circumstances or with a court order. [In 2016, Maryland Rule 5-803, Hearsay Exceptions, was updated to allow electronic recordings of a matter made by a body camera worn by a law enforcement person or by another type of recording device employed by a law enforcement agency to be admitted into evidence as long as certain conditions are met. The Rule also allows for the accused to offer the body camera recording as evidence.] A journalist wishing to record a telephone conversation must obtain the consent of all parties to the conversation. For legal protection later, obtain consent in writing in advance if possible, or if you record routinely, at least confirm consent orally once recording has begun. Federal Communications Commission regulations require any broadcaster to obtain consent before recording or broadcasting a person. However, under Maryland law and FCC regulations, consent to record or broadcast may be implied, such as speaking in the presence of a microphone or calling into a live talk show. The law’s prohibition applies to any electronic communication, such as a telephone conversation, but not to every face-to-face communication. Recording a live oral conversation is prohibited only if any party to the conversation enjoys a reasonable expectation of privacy. Courts decide on a case-by-case basis whether a reasonable expectation of privacy exists. Two persons speaking in their home probably have a reasonable expectation their conversation will not be overheard, but the same pair having a normal conversation in a public subway car are not protected against eavesdroppers. In a case of police surveillance, a Maryland court found no expectation of privacy by a prison inmate speaking to an acquaintance wearing a wire. A separate Maryland statute prohibits, in the absence of consent of an adult resident, the use of a hidden camera on private property for the purpose of observing a person inside a private residence. Cameras not hidden from view are permissible. Maryland also prohibits the use of visual surveillance in bathrooms in retail stores under most circumstances, as well as surveillance with “prurient intent” of persons in most other private arenas and places of public accommodation. A violator of these statutes is guilty of a misdemeanor and subject to a $1,000 fine or up to six months’ imprisonment.
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