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  1. #1
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    Default Federal vs. State Law for Recording Phone Calls

    My question involves criminal law for the state of: Maryland and Federal

    I have reviewed the Reporter's Recording Guide that was referenced in another thread. The guide outlines the law for taping phone calls. Still, it left me with a couple questions. Based on what I read ... Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. However, Maryland is an All-Party consent state which is contrary to Federal law. As a non-lawyer I find this problematic. Would not Federal law take precedence in court?

    If someone records a telephone conversation as one-party consent in Maryland, and the conversation is never used or disclosed by the one-party, what would the damage be ... where is the injury? I would like to read some case law (civil or criminal) regarding this if someone can point me in the right direction.

    Thanks.

  2. #2
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    Quote Quoting TLark
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    My question involves criminal law for the state of: Maryland and Federal

    I have reviewed the Reporter's Recording Guide that was referenced in another thread. The guide outlines the law for taping phone calls. Still, it left me with a couple questions. Based on what I read ... Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. However, Maryland is an All-Party consent state which is contrary to Federal law. As a non-lawyer I find this problematic. Would not Federal law take precedence in court?

    Federal law only takes precedence on issues that under the Constitution of the United States that federal law takes precedence. All other issues are reserved for the states and state law takes precedence. Therefore there are lots of things where the feds cannot overrule the states. The feds will often propose legislation and encourage the states to adopt it, but the states are not required to do so.

    If someone records a telephone conversation as one-party consent in Maryland, and the conversation is never used or disclosed by the one-party, what would the damage be ... where is the injury? I would like to read some case law (civil or criminal) regarding this if someone can point me in the right direction.

    Thanks.
    This is an issue where I am often in disagreement with some of the other posters on these forums. It is my opinion that what is done with any recording is what matters. Therefore I am in agreement with you that if a recording is never used in any way (other than to jog the memory of the person who made the recording) or disclosed in any way that its not a violation of the law.

    Other members here feel very strongly that if the recording is made at all its a violation of the law. The bottom line however is that if no disclosure of the recording is ever made, and therefore nobody ever knows about it, someone cannot be prosecuted for it.

  3. #3
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    TLark, the federal statute applies to Interstate Commerce, in other words, across state lines. It is not a matter of
    pre-emption or "occupying the field" with federal legislation. If Congress wishes to do so by that doctrine, they can. Whether or not that would hold up Constitutionally, I have no opinion on that.

  4. #4
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    It’s
    Quote Quoting llworking
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    Federal law only takes precedence on issues that under the Constitution of the United States that federal law takes precedence. All other issues are reserved for the states and state law takes precedence. Therefore there are lots of things where the feds cannot overrule the states. The feds will often propose legislation and encourage the states to adopt it, but the states are not required to do so.



    This is an issue where I am often in disagreement with some of the other posters on these forums. It is my opinion that what is done with any recording is what matters. Therefore I am in agreement with you that if a recording is never used in any way (other than to jog the memory of the person who made the recording) or disclosed in any way that its not a violation of the law.

    Other members here feel very strongly that if the recording is made at all its a violation of the law. The bottom line however is that if no disclosure of the recording is ever made, and therefore nobody ever knows about it, someone cannot be prosecuted for it.
    It’s not a matter of what other posters feel. It is a matter of law. Not all statutes are concerned with the recording itself but how it is used. In other states the act of recording in contrast to what the law allows is a criminal act in itself.

    Maryland does criminalize the act itself as well as criminalizing the disclosure of the recording. Additonally they toss in a law that adds another crime if the unlawful recording is made with malicious intent. That means one can be prosecuted for making the recording and face additional charges for disclosing the recording and even more if the intent for recording the conversation was malicious.

  5. #5
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    Quote Quoting llworking
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    The bottom line however is that if no disclosure of the recording is ever made, and therefore nobody ever knows about it, someone cannot be prosecuted for it.
    In other words you can commit any crime that you want to commit and if you never get caught, it's OK.

    Is that really how you want things to work?

  6. #6
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    Quote Quoting TLark
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    My question involves criminal law for the state of: Maryland and Federal

    I have reviewed the Reporter's Recording Guide that was referenced in another thread. The guide outlines the law for taping phone calls. Still, it left me with a couple questions. Based on what I read ... Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. However, Maryland is an All-Party consent state which is contrary to Federal law. As a non-lawyer I find this problematic. Would not Federal law take precedence in court?
    No, the Maryland law is not contrary to federal law on this. The reason is that you misstated the issue. Federal law does NOT say you are allowed to make recordings as long as one party consents. What the law says is that it violates federal law to make a recording of a private conversation unless at least party to the conversation consents. In other words, federal law is not conferring on you a right to make recordings so long as you have consent of one of the participants. It is simply saying the federal government will prosecute you if you make a recording in which you do not have the consent of at least one party to the conservation. Because the federal government has not given you a right to make any recordings, the states are free to impose more significant restrictions on recordings if they choose. Maryland and a number of other states have chosen to require the consent of ALL parties to the recording. That does not violate the Constitution or federal law in anyway. If you record a conversation in Maryland with the consent of just one party, the feds won't prosecute you because you have not violated federal law, but Maryland may prosecute you because you have violated Maryland state law.

    Quote Quoting TLark
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    If someone records a telephone conversation as one-party consent in Maryland, and the conversation is never used or disclosed by the one-party, what would the damage be ... where is the injury? I would like to read some case law (civil or criminal) regarding this if someone can point me in the right direction.
    There doesn't have to be an injury to anyone. If you commit an act that violates a criminal statute, you may be prosecuted and punished for that act even though no one was harmed by what you did.

    Quote Quoting llworking
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    This is an issue where I am often in disagreement with some of the other posters on these forums. It is my opinion that what is done with any recording is what matters. Therefore I am in agreement with you that if a recording is never used in any way (other than to jog the memory of the person who made the recording) or disclosed in any way that its not a violation of the law.
    Then I guess it's a good thing you are not a lawyer. If you were a lawyer advising your clients with the position you gave above you would put your clients at risk and perhaps get you dinged for malpractice. If a statute says it is illegal to make the recording itself, then simply making the recording violates the law regardless of what use you make of the recording. If it was the use that mattered, the statute would say so; Congress and state legislatures know how to write such statutes after all. It's like a law that prohibits running a red light. I have seen people argue that it is not illegal to run a red light if there is no one else around because then there is no risk of an accident and no one is harmed. But that is clearly not what the law says. The law says it is illegal to run a red light. Period. If you run a red light you may be prosecuted and fined/jailed even if there was no other car around in a 100 mile radius. It is the same thing with these evesdropping laws: most of them make the act of recording it a crime in itself, and thus under those statutes it is irrelevant what use you made of the recording.

  7. #7
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    Quote Quoting TLark
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    Based on what I read ... Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call.
    Incorrect. Federal law makes it illegal to record a phone/electronic communication unless at least one party to the communication consents. That's a very different thing.

    Quote Quoting TLark
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    However, Maryland is an All-Party consent state which is contrary to Federal law. As a non-lawyer I find this problematic. Would not Federal law take precedence in court?
    There's no conflict. Federal law says it's illegal unless at least one party consents. Maryland law says its illegal unless all parties consent. You must comply with both. If you only comply the federal law, then you aren't violating the federal law, but you're violating the state law. States are allowed to enact laws that are stricter than federal law.

    Quote Quoting TLark
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    If someone records a telephone conversation as one-party consent in Maryland, and the conversation is never used or disclosed by the one-party, what would the damage be ... where is the injury?
    Not really sure what you're asking here, but I'm sure that one-party and all-party consent laws are violated every day without any consequence.

    Quote Quoting llworking
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    This is an issue where I am often in disagreement with some of the other posters on these forums. It is my opinion that what is done with any recording is what matters. Therefore I am in agreement with you that if a recording is never used in any way (other than to jog the memory of the person who made the recording) or disclosed in any way that its not a violation of the law.
    That's silly. It's a little like saying that, if I'm traveling at 50mph in a 50mph zone and no one is around and I briefly accelerate to 51mph and no one sees me and no harm results, then I haven't violated the law against speeding.

    While your comment about the practical aspect of things is well-taken, what law do you think exists on this issue that says no violation occurs if the recording is "never used in any way (other than to jog the memory of the person who made the recording)"?

    Quote Quoting RJR
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    TLark, the federal statute applies to Interstate Commerce, in other words, across state lines. It is not a matter of
    pre-emption or "occupying the field" with federal legislation. If Congress wishes to do so by that doctrine, they can. Whether or not that would hold up Constitutionally, I have no opinion on that.
    All telephone communications are part of interstate commerce -- even those that take place between persons in the same state. If Congress wanted, it constitutionally could preempt state laws on this issue.

  8. #8
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    If recording a telephone conversation without all parties consent is a criminal act – then there must be exceptions. The last time I called 911 they said, "Anne Arundel County 911. Do you need police, fire, or ambulance?" They never said they were recording the call. Are they are not in compliance with the statute?

  9. #9
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    Default Re: Federal V.s. State Law in Taping Phone Calls

    Quote Quoting TLark
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    If recording a telephone conversation without all parties consent is a criminal act – then there must be exceptions. The last time I called 911 they said, "Anne Arundel County 911. Do you need police, fire, or ambulance?" They never said they were recording the call. Are they are not in compliance with the statute?
    Because it is a "Governmental Function" as defined under the law. Public safety is a priority, and that means maintaining evidence, such as a terrorist call.

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