Litigation

"Wiretapping" on a public highway

By James R. Copland

David Rittgers explains how Maryland police and prosecutors are misusing the state's wiretapping statute to deter citizens from recording police misconduct in plain view on I-95:

[T]he Maryland wiretapping statute makes it a crime to record any conversation without the consent of all parties -- a "unanimous consent" law. Maryland is one of a dozen states with such a statute; most jurisdictions are less strict. The penalty can be up to five years in prison and up to a $10,000 fine. When the prosecutor asked for a $15,000 bond for a $10,000 crime, the judge questioned both this maneuver and the use of the law against Mr. Graber.

The judge was right to ask how Mr. Graber came into custody. Maryland courts have consistently held that where there is no reasonable expectation of privacy, there is no violation of the wiretapping law. An assistant attorney general confirmed this reading of the law in a letter to the state legislature last year. Mr. Graber's conversation with the officers giving him a speeding ticket, on a public highway and observed by hundreds of motorists, could not have been in a more public setting. It seems certain that even if Mr. Graber is convicted he will win on appeal and have the verdict thrown out because of the state's overbroad reading of the wiretapping statute.

The deterrent to recording police is still established.

Much of our focus on overcriminalization has been on new laws that are overly vague or sweeping, but this case demonstrates that we should also look at older laws outrun by technological developments.

Full post as published by Point of Law on June 03, 2010 (boomark / email).