The Judiciary Committee in the Maryland House of Delegates is looking to update laws requiring two-party consent to record audio in order to grapple with the explosion of cellphone and Ring cameras. 

In a hearing last week, the Judiciary Committee in the Maryland House of Delegates discussed existing two-party consent requirements for recording audio and how to modernize those standards to potentially capture consent for video recording. As the law stands audio requires consent but video does not, primarily because when the law was passed camera phones and Ring cameras were not as widely adopted as they are now. The motivation of the session was to gather information to inform the process of incorporating video recording into the provisions of the law and to do so in a way that protects privacy, vulnerable communities, and the interest of justice.

Following presentations from multiple legal experts, the committee was able to ask questions and seek additional information and research, but the discussion ultimately revealed just how complicated it will be to incorporate video without a lot of other clarifications and exceptions. At one point Delegate Karen P. Simpson, to get the group back on track, attempted to capture the goals of the discussion by outlining what the committee needs to accomplish in order to comprehensively update the law. In reconciling similar requirements for video recording, committee members need to answer:

• What should be admissible in court?
• Who can record and under what circumstances?
• What should the penalties be for unlawful recordings?
• Should there be exceptions to those penalties for vulnerable populations and/or individuals recording in what they believe to be the interest of justice?

Representatives for the briefing spoke on behalf of:

• University of Maryland Carey School of Law
• National Conference of State Legislatures
• Maryland Department of Legislative Services
• Maryland Office of the Public Defender
• Frederick County State’s Attorney’s Office

The panel discussed a multitude of circumstances where the current law adds important layers of protection for privacy and victims but also how the extension of those protections to video recordings gets increasingly complicated in today’s context. In the discussion it seemed to be generally accepted that the initial two-party consent for audio recording provision came about at a time when lawmakers were not considering how ubiquitous cameras were to become in modern life. From cell phones to Ring devices, cameras have transformed how society experiences everyday life whether an individual notices them or not. In weighing how best to move forward, one expert referred to the original law as an artifact of it’s time, going on to seemingly question the utility of revising the existing law rather than starting over under the current social context.

Watch the Judiciary hearing on wiretapping and two-party consent.