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Perry v. State12/10/1999
pose, and under that scheme, parties to telephone conversations really have no assurance that the conversation will not be taped and must assume the risk that it might be recorded.
That is much less the case under the Maryland law. Section 10-402(a) states expressly that, "except as otherwise specifically provided in this subtitle," it is unlawful for "any person" willfully to intercept any wire communication. (Emphasis added). The requirement of a specific exception, which also appears in the Federal Act, assumes a greater significance because of the State-law requirement of all-party consent.
The thrust of the State law is that no conversation may be willfully taped unless specifically allowed, and the only provision that would allow a private person, not acting as a government agent, in conformance with a court order, or as an employee of a communication company, to intercept a wire communication is ยง 10-402(c)(3), which states:
"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 or laws of the United States or of this State." (Emphasis added).
As we pointed out in Mustafa v. State, supra, 323 Md. at 74, 591 A.2d at 485, " he two-party consent provision of the Maryland Act is aimed at providing greater protection for the privacy interest in communications than the federal law." The requirement of consent by all parties for the recording of a telephone conversation by a private individual has been a fundamental part of Maryland law since at least 1956, and the one attempt by the Legislature, in 1973, to modify that provision met with a veto in which the Governor expressed his deep concern that the "opportunity for unwarranted spying and intrusions on people's privacy authorized by this bill is frightening." See 1973 Md. Laws, Vol. II, at 1925. Under long-standing Maryland law, therefore, a party to a telephone conversation does not take the risk that another party, not acting as, or under the direction of, a government agent, will record and divulge the contents of the conversation, for, absent the prior consent of the party, such recording and divulging is clearly prohibited and, indeed, if done willfully, constitutes a criminal offense. Given that prohibition, participants in a telephone conversation may ordinarily rely on the fact that their conversation will not be surreptitiously recorded or, at the very least, that, unless done in strict conformance with the State law, a recording of their conversation will not be admitted into evidence in any Maryland court.
Without commenting on whether one who unlawfully tapes a conversation can seek the protection of the exclusionary rule embodied in the Maryland statute - an issue that is not before us in this case -we find nothing in the Maryland wiretap law, either in its wording or in its legislative history, suggesting an intent by the Legislature to preclude any other party to an intercepted conversation from invoking the exclusionary rule on the ground that he/she is a co-conspirator with the person who unlawfully recorded the conversation. Any exception that would make an interception lawful or that would preclude an aggrieved person from moving to suppress an unlawful interception must be "specifically" provided for in the Act, and we find no specific exception for co-conspirators. Thus, although conspirators are generally bound by the acts and statements of their co-conspirators,
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