A Summary of
Maryland's Interception Law
By Kevin E. Wood
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
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
(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
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
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
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.
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
"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
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
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.
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
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
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
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.
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
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
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
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
"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
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
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).
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