With all the technology we have at our disposal these days it seems that video and audio recording has become normal. In fact, it seems like our entire lives are being recorded in video or audio form.
This may lead you to believe that it is perfectly legal to record another person on a phone call, or on video, without their explicit consent.
That is not true – at least in Maryland.
It is not legal to record a phone call in Maryland without the consent of everyone on the call. In fact, it is a criminal offense.
This is not true in most other states, and under federal law, so people mistakenly think it is OK to record everything in Maryland too.
Nope. Maryland has a specific statute about recording phone calls or any other conversations. It does sort of pre-date the “internet age”, but it is still good law today. The statute is located at §10-402 of the Courts & Judicial Proceedings Article.
If you audio tape someone without their consent or knowledge, you have committed a crime.
One Party vs All Party Consent
Most states are what is known as one-party consent states. This means that only one person on the phone call must consent to the audio taping.
The federal law provides this same thing. Under federal law, you can record a conversation without the other party’s consent, but a third party cannot record a conversation without at least one party’s consent. (So no wiretapping of other people’s conversations where you aren’t a party – unless you are a police officer with a court order to do so!)
Obviously, one party to the conversation is doing the recording most of the time. This makes it perfectly legal for you to tape someone else’s phone call in these other states, and under the basic federal law.
But not in Maryland!
Maryland is an all-party consent state. That means all parties to the call must consent to being recorded. In Maryland it is illegal for you to tape someone else on the telephone without their explicit consent.
You may have seen this in action if you have ever given a recorded statement to an investigator or insurance company, say after a car accident.
The person taking the statement will ask you if you are aware the statement is being recorded. You have to verbally confirm that you are aware of the recording before that recording will continue to be made.
What About Video Only?
Generally, video only IS allowed, if the place is public. It is the audio that runs afoul of the law.
Now this gets very murky and full of exceptions, so this is a very general statement of the law.
If a person has a “reasonable expectation of privacy” then you cannot video them. What qualifies as that “reasonable expectation” is the source of a lot of case law. There are exceptions, and exceptions to the exceptions. I am not going to set it all out here because it is still changing.
Hiding a camera in a private place (especially a bathroom!) is not legal. Nanny cams are legal if they are video only. But you cannot record people inside a private residence without their knowledge. That sounds inconsistent, but it is the law in Maryland.
Dash cams are legal, but the audio may not be if people don’t know they are being recorded. Doorbell cams are OK with video, but maybe not the audio. That hasn’t been litigated yet.
This is a murky and still developing area of law. I cannot give you an easy rule to follow for when video only is allowed. This may be the subject of another post entirely.
Think about whether the person being taped would “reasonably” be expecting privacy. If so, don’t do it. You may be committing a crime. (And it is safest to err on the side of not doing it. Ask a lawyer for an opinion if you have any question whatsoever.)
But the audio is always going to be a problem under Maryland law. That is the major point of this post, and the main rule to remember.
Unconsented Audio is Not Admissible as Evidence
It is common to run into this in court – especially divorce court. People going through a divorce or child custody case will sometimes record each other saying horrible things on the phone. Sometimes these things are said to the children.
The other spouse doing the taping will try to use these recordings in court.
The court will refuse to hear any audio taping without the other person giving explicit consent. This tape will be worse than useless. It might actually get you in trouble if someone files a charge against you with the police.
And if you are in a court battle with someone where you felt the need to secretly record their conversation, you can bet they will be angry enough to pursue such a charge if you give them the opportunity. Don’t risk this!
It’s a Crime
This doesn’t only apply to court. Remember, audio recording without consent is a crime – not just a ban on evidence. It can become a problem in any situation.
Those of a certain age may remember this law came into play during the Monica Lewinsky – Bill Clinton case. Much of the evidence about what happened came from a woman named Linda Tripp, who recorded what Monica Lewinsky was saying when they talked on the phone. Some of these recordings occurred in Maryland, and Linda Tripp faced criminal charges for taping her phone calls with Lewinsky.
Do you really want to be hiring a criminal defense attorney just because you taped a phone call? It is better to just avoid this issue altogether.
I was once asked this question by a friend who simply wanted to record people at a meeting so that he could take notes later. He wanted to lay a tape recorder on the table during the meeting.
Someone at the meeting objected, and he was shocked to find out that he was not allowed to do that. I had to confirm that the other person was correct.
Video vs Audio
There is a difference. You cannot video a person in a place where they enjoy a “reasonable expectation of privacy.” So you cannot secretly tape another person in their home, for instance.
But you can video someone in public or another place where they should know someone may be watching.
Interestingly, you can’t audiotape them. I know this gets messy when you have video and audio synced together. I honestly don’t know what a court would do in that situation.
Technically, you should be able to video someone in public but NOT audiotape them without their consent. That isn’t going to be practical, and I don’t know what would happen if you did it. I think this is one example of where the law simply has not caught up with technology.
Conclusion & Next Steps
Just because we live in a YouTube Society, don’t get the wrong idea that you can audiotape everyone who calls you. In Maryland, that could get you into serious legal trouble.
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