A Summary of Maryland's Interception Law


By Kevin E. Wood
united@allunited.org


Linda Tripp will not be convicted of a crime for "recording" her conversations with Lewinsky because she did not "intercept" a communication. Below you'll find a rather detailed explanation why. But it's important to realize that the press reporting on this story is either so uneducated and uninformed that they cannot even read the text of the law applicable to Linda, or they are intentionally misrepresenting the law because of a pathological dislike for Linda and her actions. Whichever, there must be at least one honest and competent reporter out there interested in the truth about what Maryland law DOES say rather than what the great majority erroneously THINKS it says.

What I would like to believe is that every reporter is doing the best he or she can but because the law is sometimes so complex that it is hard or nearly impossible to understand. I have taken years to understand "interception" law and still learn new things as I continue my research. But, one thing I am certain of now is that an "interception" of a communication is NOT the same thing as a "recording" of a communication.

I know I stand very alone in this matter, but I can be confident that I stand correct because I have been prosecuted and convicted of recording a conversation in Florida but prevailed on appeal for the same reasons that Linda will eventually prevail before a well informed judicial system. For this reason I feel qualified to speak about what is and is not illegal regarding the "interception" of communications.

There are many assumptions that are being made about the Maryland law that are dead wrong but are still repeatedly published and broadcast by the media and prominent persons, lawyers, prosecutors, and even the courts. In this article, I am going to try once again to do away with the assumptions. And you know what the word "ass-u-me" means.

False Assumption #1: Maryland law prohibits the "taping" or "recording" of conversations without the consent of all persons.

The Truth #1: Maryland law prohibits the "interception" of "communications" without the consent of all persons to the communication and does not even mention "taping" or "recording" anywhere in the part of the statute related to criminal violations.

Explanation #1: Maryland law states the following verbatim:

Unlawful acts. -- Except as otherwise provided in this subtitle it is unlawful for any person to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or

(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle. Cts. & Jud. Proc. 10-402(a)(1)-(a)(3). (emphasis added)

Nowhere in the law are the words "tape" or "record" ever used.

Request to the Press #1: Stop incorrectly reporting that Maryland law prohibits the "taping" or "recording" of conversations without the consent of all persons and instead properly report that Maryland law prohibits the "interception" of "communications" without the consent of all parties.

The definition of "intercept" and its elements are crucial to not only understand but to prove to obtain a legitimate conviction. "Assuming" that intercept means the same as taping and recording is also not correct the federal and Maryland legislatures made this clear despite this distinction being ignored by many of the courts, and prosecutors.
False Assumption #2: The Maryland law is a "wiretapping" statute and Linda Tripp was charged with "wiretapping" or charged under the "wiretapping" statute.

The Truth #2: The Maryland state law is an "interception" statute that regulates the "interception" of communications, not "wiretapping" per se.

Explanation #2: There is such a thing as "wiretapping" but "wiretapping" is only one subset of "interceptions" and may or may not be illegal and applies to situations where a third party, the government or an individual, "eavesdrops" on a conversation without the knowledge of the participants to the conversation. Blacks Law Dictionary defines "wiretapping" as follows:
A form of electronic or mechanical eavesdropping where, upon court order, law enforcement officials surreptitiously listen to phone calls or other conversations or communications of persons.
Linda was using her own phone to talk to Lewinsky. She did not "wiretap" into someone else's telephone lines in the basement, at an outside junction box, at a telephone pole, etc. to "surreptitiously listen" to someone else's conversation. Lewinsky knew that Linda was listening because she was talking to her. Merely recording your own conversation with someone is not "wiretapping." Again, note the word "listen" is used, not recording. You cannot "eavesdrop" on your own communication.

Request to the Press #2: Stop reporting that Linda was charged with "wiretapping" and properly report that she was charged with "interception" of a communication.
False Assumption #3: To convict Linda, Maryland prosecutor's must only prove that she "recorded" or "taped" her conversation without Lewinsky's consent.

The Truth #3: To convict Linda, Maryland prosecutor's must first prove (1) a communication was "intercepted" as "intercept" is defined under Maryland law and second must prove (2) if an "interception" is shown, that it was intercepted without Lewinsky's consent.

Explanation #3: In order to violate Maryland statute, Cts. & Jud. Proc. 10-402(a)(1), the State needs to prove that a certain number of elements exist as follows:

1. There must be a "wire, oral, or electronic communication." A telephone conversation qualifies for this element and the parties will most likely stipulate (agree) to this fact.

And,

2. There must be an "intercept" of that communication.

To prove the elements of an "intercept", the State must rely on the definition of what an "intercept" is that is printed in the statute which reads:

"Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. Cts. & Jud. Proc. 10-401(3)

To show an "intercept", the state must prove ALL of the following elements:

1. There must have been the aural or other "acquisition" of the communication (remember, a telephone conversation is a "wire, electronic, or oral communication"). It is extremely important to note here that an "intercept" requires an "acquisition" of a communication, and NOT the "taping" or "recording" of a communication. In this case it again can be stipulated that there was an "acquisition" of the communication because Linda was using her own telephone "system" to "acquire" Lewinsky's communication -- that is, listen to the content of Lewinsky's communication that she knowingly and consensually provided to Tripp.

And,

2. The "acquisition" of the communication must have been made "through the use of any electronic, mechanical, or other device." As we will see below, not all "devices" qualify under the statute and some, such as a user's own telephones and components (Radio Shack pickup and recorder, for example) attached to their own telephones, are exempted as "acquisition...devices."

"Electronic, mechanical, or other device" is defined in the Maryland statute as follows:
"Electronic, mechanical, or other device" means any device or electronic communication other than: (i) Any telephone...equipment...or any component thereof... furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business. Cts. & Jud. Proc. 10-401(4)(i). (emphasis added)
Use of the words "other than" excludes from interception devices telephones and telephone equipment and components connected to them, that is the Radio Shack pickup and recorder used in this case. As you see however, it must be equipment provided by the "subscriber" or "user" of the telephone system, which in this case is Tripp because the telephone equipment and components were attached to her own phone service in her own home and were used in the ordinary course of her own personal, professional, or other business.

Without a prohibited interception device being used under prohibited circumstances there is no "intercept" and therefore no violation of the statute.

Because there was no prohibited interception device used to "acquire" the communication (that is, listen to it), there is no need to move on to the consent element under the statute. But let's look at the consent provision if an interception device was involved. Consent is addressed in the following provision of Maryland law:
It is lawful under this subtitle for a person to intercept a wire, oral, or electronic 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 unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution of laws of the United States or of this State. Cts. & Jud. Proc. 10-402(c)(3). (emphasis added)
Again, note the various forms of the word "intercept." The words "record" or "tape," or derivative forms of those words, are not used anywhere.

Also recall that "intercept" means to "acquire", and not to "record" or "tape." An "interception" is therefore an "acquisition" of a communication and not the "taping" or "recording" of it.

Again we also have two elements to show:

1. The person "intercepting" or "acquiring" the communication as a party to the communication. Clearly, Tripp was a party to the communication with Lewinsky.

And,

2. All parties to the communication have given prior consent to "interception" or "acquisition." This element is also satisfied because Lewinsky voluntarily was talking to Tripp, knew she was talking to Tripp, and directed her communications at Tripp over the telephone system and knew Tripp was "listening to" or "acquiring" her communication. Lewinsky never objected to Tripp listening to her communication. Of course, Tripp consented to the acquisition therefore all parties consented to the acquisition.

The purpose of the "acquisition" was also to gain evidence of violations of law and also to gain evidence that would protect Tripp in future proceedings from being accused of lying or perjury had Lewinsky and President Clinton agreed to match false stories and paint Tripp as the liar and subject her to potential perjury charges when if fact she was the only one telling the truth. These are certainly not criminal purposes.

Although Lewinsky may never have said "I consent to your interception and acquisition of my communication", consent is certainly "implied" from the circumstances. "Implied consent" is defined by Black's Law Dictionary, Sixth Edition, as conditions "manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference arising from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstances signifying assent."

If you note, there is no requirement to get consent of all parties to "record" or "tape" a communication. There is only a requirement to get consent to "intercept" a communication which is defined by the statute to be an "acquisition" of a communication.

The bottom line is that "interceptions" and "recordings" under the statute are two separate definitions and acts that are clearly distinguishable from each other. It is this area that causes the greatest confusion in the courts and has resulted in conflicting and inconsistent opinions in the court. I could list several cases that equate "interception" with "recording" as the same thing but could also provide others that have distinguished the two.

However, the best argument for the distinction has been an elusive butterfly in almost all of the decisions made related to the federal and state "interception" laws. That argument is that the federal legislature intended to distinguish the difference between "interception" and "recording" and actually worded the statute to clearly set forth the distinction.

This argument applies to Maryland law also because the Maryland legislature, in enacting the Maryland "interception" statute, patterned the state law, and even copied it in many cases, after the federal law. By adopting the legal provision of the federal law, Maryland is also obligated to follow in good faith federal law interpreting the same provisions in the federal counterpart. Of course, case law is secondary to actually complying with what the face of the statute actually says.

The only court that has picked up on this elusive, but controlling, distinction is the federal 10th Circuit Court of Appeals which concluded in 1974 as follows:
The government has adopted the position of the trial court below that the intercepting device was the recorder and not an extension telephone. While such a view avoids the problem presented, we are simply not persuaded by this contention. We agree with appellant that the recording of a conversation is immaterial when the overhearing is itself legal. It is the means whereby the contents of the conversation are acquired that is crucial. See State v. Vizzini, 115 N.J. Super. 97, 278 A.2d 235. A recording device placed next to, or connected with, a telephone receiver cannot itself be the "acquiring" mechanism. It is the receiver which serves this function--the recorder is a mere accessory designed to preserve the contents of the communication. This interpretation comports squarely with the clear distinction drawn between "intercepting" and "recording" under 18 U.S.C. 2518(8) (a), which deals with judicially authorized interceptions: The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. [emphasis added].
We therefore conclude that the tape recorder in question cannot constitute the intercepting mechanism when used, as it is argued here, connected to a telephone receiver. U.S. v. RICHARD KAY HARPEL, 493 F.2d 346 (10th Cir. 1974). (emphasis added)

Even though this may be an older case of a circuit in which Maryland is not even a part (appeal was from a Colorado U.S. District Court), the argument cannot be ignored and is as valid today as it was in 1974.

The bottom line is that Congress intended to make a "clear distinction" between "intercepting" and "recording" and reflected this intention in the statute itself.

The HARPEL case addressed above refers to a section of the federal "interception" law as follows:
The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. 18 U.S.C. 2518(8)(a). (emphasis added)
This provision of the law, as HARPEL points out, clearly distinguishes that the communication must be "intercepted" first and then "recorded on tape" as two separate operational, and legal, functions. This provision in the federal statutes, calling out the distinction, cannot be ignored by the press nor the courts if either are acting in good faith to search of the truth in the law and what the law was originally intended to regulate.

Well, you say, that's federal law, but what about Maryland law? The answer is that the Maryland legislature wanted to adopt the same provision and logic into Maryland law so they merely copied, almost verbatim, the federal statute and in Maryland statute provided:

Recordings of contents of intercepted communications(1) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this subtitle, if possible, shall be recorded on tape or wire or other comparable device. Cts. & Jud. Proc. 10-408(g). (emphasis added)
They are the same in purpose and form with a few words changed, but the "clear distinction" is still there and the HARPEL argument still applies. That is, an "interception" is not the same as a "recording" and an "interception" is clearly the "acquisition" of the communication and NOT the "recording" or "taping" of it.

So why have so many courts "assumed" that "recording" of conversations is illegal without consent? The answer is simple - they made a mistake and overlooked the HARPLE arguments and failed to analyze every element required to establish an "interception" of a communication. Had they done this very detailed analysis, and had the parties well briefed this analysis, the answer would have been clear and not overlooked.

The incontrovertible conclusion: Tripp has been accused of something she did not do, and will not be convicted of intercepting a private telephone conversation.