Maryland has some of the strictest recording consent laws in the country. Unlike most states, Maryland requires the consent of every party to a conversation before it can be recorded, and violating that law is a felony. If you have been charged with illegal recording, or if you recorded someone without their knowledge and are wondering whether that recording can help your case, here is what you need to know.
Maryland Is an All-Party Consent State
Most states operate under a one-party consent rule, meaning only one person in a conversation needs to agree to the recording, typically the person doing the recording. Maryland is different.
Under the Maryland Wiretapping and Electronic Surveillance Act, it is unlawful to record any wire, oral, or electronic communication without the consent of all parties to the conversation. This means that even if you are a participant in the conversation, you cannot legally record it without telling the other parties and getting their agreement.
The relevant statute is Md. Code Ann., Cts. & Jud. Proc. § 10-402, which prohibits anyone from willfully intercepting, attempting to intercept, or asking another person to intercept any wire, oral, or electronic communication without consent.
This applies to:
- In-person conversations
- Phone calls
- Video calls
- Text messages intercepted during transmission
- Conversations recorded at residential properties and business locations
What About Video Recording?
Video recording without audio is treated differently under Maryland law. Recording someone on video, without capturing audio, is generally permissible in Maryland without the consent of all parties, with important exceptions.
It is not legal to use hidden cameras to record someone in a location where they have a reasonable expectation of privacy. This includes:
- Bathrooms and changing rooms
- Inside a private residence without consent
- Private areas of a business not accessible to the public
Doorbell cameras and dash cameras are generally legal for video, but the audio component may violate the law if people being recorded have not consented. This remains a developing area of Maryland law, and you should consult an attorney before assuming your recording setup is compliant.
What Are the Penalties for Illegal Recording in Maryland?
Recording someone in violation of the Maryland Wiretapping and Electronic Surveillance Act is a felony offense. Penalties include:
- Up to 5 years in prison
- A fine of up to $10,000
- Or both
Beyond criminal penalties, the person recorded without consent may also bring a civil lawsuit against you for damages under Maryland law.
Can You Use an Illegal Recording in Court?
This is the question most people actually want answered. The short answer is: generally no, and using or sharing an illegal recording can make your legal situation significantly worse.
Maryland law prohibits not only the act of recording without consent, but also the disclosure, attempted disclosure, or sharing of any recording made in violation of the statute. This means that sending the recording to someone, posting it online, or attempting to introduce it as evidence could result in additional criminal charges.
Maryland courts can suppress illegally obtained recordings, meaning the recording would be excluded from evidence entirely. And if you attempt to use an illegal recording in a legal proceeding, such as a divorce, custody case, or criminal matter, you may find yourself facing charges in addition to whatever issue you were trying to resolve.
There are limited exceptions. Law enforcement acting under a valid court order, certain communications service providers, and parties acting in the public interest under specific circumstances may have grounds to record without full consent. These exceptions are narrow, and you should not assume they apply to your situation without legal advice.
What Should You Do If You Have Already Made an Illegal Recording?
If you recorded someone without their consent in Maryland, stop sharing it immediately. Do not send it to anyone, post it on social media, or attempt to submit it as evidence before speaking with an attorney. Deleting it without legal guidance can also create problems if the recording becomes relevant to a legal proceeding.
An experienced Maryland criminal defense attorney can advise you on how to handle the recording, whether any exceptions apply to your situation, and how to minimize your legal exposure.
Frequently Asked Questions
Maryland is technically an all-party consent state, meaning every person in a conversation must consent to being recorded. The term “two-party consent” is commonly used but is slightly misleading if there are three or more people in a conversation, all of them must consent.
No. In Maryland, being a participant in the conversation does not give you the right to record it without notifying and getting consent from the other parties.
Exceptions include law enforcement acting under a valid court order, communications service providers monitoring for service quality purposes, and certain situations involving the protection of minors. These exceptions are narrow, consult an attorney before assuming one applies.
Generally no. Illegally obtained recordings are typically inadmissible in Maryland courts, and sharing or attempting to use such a recording can result in additional criminal charges.
Federal law (the Electronic Communications Privacy Act) is a one-party consent law, meaning only one party to the conversation needs to consent. However, because Maryland’s law is stricter, Maryland residents are subject to the state standard. When in doubt, Maryland’s all-party consent rule controls.
Charged With Illegal Recording in Maryland? KGO Can Help.
Violating Maryland’s wiretapping law is a serious felony charge that can carry prison time and a permanent criminal record. At Krum, Gergely & Oates, our Maryland criminal defense attorneys have extensive experience defending clients against wiretapping and electronic surveillance charges. We understand how these cases are prosecuted and how to build an effective defense.
Contact us today at (301) 840-0080 for a free consultation.
