THE FOLLOWING LEGAL STUDY ARTICLE POSTING IS INTENDED TO SUPPORT AWARENESS AND UNDERSTANDING. IT IS ONLY A PRELIMINARY LEVEL LEGAL STUDY ARTICLE AND IT IS NOT LEGAL ADVICE. IF THE READER SEEKS LEGAL ADVICE CONCERNING HIS OR HER PARTICULAR SITUATION, HE OR SHE SHOULD SEEK OUT AN ATTORNEY IN A LAWYER CLIENT RELATIONSHIP.
Without a good faith reliance on a court order or legislative authorization , an employer could be both civilly and criminally liable to an employee and/or other parties under Maryland’s “Wiretap Act” if that employer uses continuous , driver facing , close up , oral recognition capable , audio and/or video surveillance equipment to willfully intercept or endeavor to intercept any content of any private oral conversations of that employee , when all of the parties to the communication have not given prior consent to the interception and there is a reasonable expectation of privacy concerning such conversations.
A. Unless the employer has a good faith reliance on a court order or legislative authorization , the Maryland “Wiretap Act” prohibits an employer from willfully intercepting or endeavoring to intercept , aurally or otherwise , through the use of any electronic, mechanical, or other device , any information concerning the existence, substance, purport, or meaning of any private oral communication of an employee unless all parties to the communication have given prior consent to the interception
Study Basis
Pursuant to Md. Code § 10-402(a)(1)(4) of the Courts and Judicial Proceedings Article (“CJP”), the Maryland “Wiretap Act” provides, in pertinent part, as follows:
(a) Unlawful acts- Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, …., any , oral, … communication;
(4) It is lawful under this subtitle for a person to intercept a …. , oral, … communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception ……
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Pursuant to CJP § 10-401(4)(10)(13i) and (14), the definitions section of the Maryland “Wiretap Act” provides, in pertinent part, as follows:
As used in this subtitle the following terms have the meanings indicated:
(4) “Contents”, when used with respect to any ….oral..communication, includes any information concerning ….the existence, substance, purport, or meaning of that communication.
(10) “Intercept” means the aural or other acquisition of the contents of any ….oral communication through the use of any electronic, mechanical, or other device.
(13)(i) “Oral communication” means any conversation or words spoken to or by any person in private conversation.
(14) “Person” means any employee or agent of this State or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
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When interpreting the Maryland Wiretap Act, the goal is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied.” We must begin with the well-established canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. If the language is clear and unambiguous on its face, that is the end of our inquiry. If, however, the language is ambiguous, we move on to examine case law, the structure of the statute, statutory purpose, and legislative history to aid us in ascertaining the intent of the General Assembly. Additionally, statutes “should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.” See Holmes v. State, 236 Md. App. 636, 653, 182 A.3d 341, 350 (2018) citing Seal v. State, 447 Md. 64, 71–72, 133 A.3d 1162 (2016)
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Maryland state courts have interpreted the clear purpose of the Maryland “Wiretap Act” is to prohibit secret recordings of private oral communications, without regard to which device may be used to accomplish that task. See the Maryland Court of Special Appeals opinion in Holmes , 236 Md. App. 636, 653, 182 A.3d 341, 350 (2018).
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B. Maryland state courts have interpreted the Maryland “Wiretap Act” to protect oral communications when the parties have a reasonable expectation of privacy.
Study Basis
When an oral communication is intercepted, determining whether a violation of the Wiretap Act occurred hinges on a determination that at least one of the parties had a reasonable expectation of privacy. See Malpas v. Maryland, 695 A.2d 588 (Md. Ct. Spec. App. 1997) citing Fearnow v. The Chesapeake & Potomac Telephone Company of Maryland 342 Md 363, 676 A.2d.65 (1996)
C. The willfulness mens rea of the employer does not require a showing of “bad motive” or “knowing unlawfulness.” It is sufficient to show that there was an intentional, rather than inadvertent or negligent, interception by the employer.
Study Basis
The willfulness mens rea does not require a showing of “bad motive” or “knowing unlawfulness.” See Holmes citing Deibler v. State, 365 Md. 185, 199, 776 A.2d 657 (2001). It is sufficient to show that there was an intentional, rather than inadvertent or negligent, interception . Id. Cf. Boston v. State, 235 Md. App. 134, 150–51, 175 A.3d 836 (2017)
D. Any employer who violates the Maryland “The Wiretap Act” is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.
Study Basis
Pursuant to CJP § 10-402(b), the Maryland “Wiretap Act” provides, in pertinent part, as follows
(b) Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.
Again , CJP § 10-401 (14) defines a person as:
“Person” means any employee or agent of this State or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
E. A good faith reliance on a court order or legislative authorization shall constitute a complete defense of an employer to any civil or criminal action brought under the Maryland “Wiretap Act” .
Study Basis
Pursuant to CJP § 10-410(b), the Maryland “Wiretap Act” provides, in pertinent part, as follows:
(b) A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.
F. Any employee whose oral communication is intercepted by his or her employer in violation of “The Wiretap Act” shall have a civil cause of action against any employer who intercepts the communications, and be entitled to recover actual and punitive damages as well as reasonable attorney’s fees and other litigation costs.
Study Basis
Pursuant to CJP § 10-410(a)(1)(2)(3), the Maryland “Wiretap Act” provides, in pertinent part, as follows:
(a) Any person whose … oral…communication is intercepted, …. in violation of this subtitle shall have a civil cause of action against any person who intercepts…. the communications, and be entitled to recover from any person:
(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(2) Punitive damages; and
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
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