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Recording on Cell Phone Does Not Violate Wiretap Laws

March 8, 2016

Maryland is a two party consent state for purposes of recording another person. That is, you are not permitted to record someone in Maryland without the other party’s consent. However, there is a little known, huge exception to that rule—recordings made on cell phones.

At a recent divorce trial I successfully argued that the cell phone videos my client took of his wife yelling and throwing knifes at him were admissible. The other side’s divorce attorney argued that because his client did not consent to the recording my client violated the Maryland Wiretap Act, Cts. & Jud. Proc. § 10-401 et seq. (2006), that the recordings were inadmissible and that my client should be criminally prosecuted. He said two other judges had accepted his argument and excluded cell phone recordings from being used as evidence—but the other lawyers did not know about the case I found that contradicted that position.

The secret to success in my client’s case was Martin v. State, 218 Md.App. 1, 96 A. 3d.765 (2014), cert. denied 440 Md. 463(2014), cert denied 135 S. Ct. 2068 (2015) in which the Court of Special Appeals held that cell phone recordings are not covered under the state wiretap statute. Recording someone speaking is generally an “interception” for wiretap act purposes. However, the Maryland Wiretap statute only prohibits interceptions if they occur through the use of any “electronic, mechanical or other device.” CJP §§ 10-401(10) and 10-402(a). The Act specifically excludes “telephone” from the definition of an “electronic, mechanical or other device.” Therefore, by using his cell phone to record the incidents, my client was within his rights, the evidence was admitted and he got the divorce he wanted, on the terms he wanted without having to pay any alimony, divide his pension, or pay her attorney’s fees.

Practice Pointer: Under the current state of the law, you may record someone without their permission if you do it on your cell phone. This would appear to be an unintended outcome of the Act, but as of the date of this writing it appears to be the status of the law.

This blog is the opinion of the author and does not constitute legal advice. It should not be relied upon for any purpose; it is presented solely as a discussion point with an attorney of your choosing. It does not in any way create an attorney-client relationship between the author and the reader.