ISSUES

 

I.          Has a person who records a telephone conversation without the other party’s consent, and then discloses the contents of the tapes, violated the Maryland Wiretap Act, and if so, what civil damages are available?

 

BRIEF ANSWER

 

I.          Yes, and civil damages are available, but only if the taping was “wilful”.  The Maryland Wiretap Act forbids “wilful” taping of telephone conversations unless both parties consent to the taping.  To show wilfulness, a plaintiff must prove that the person who taped the conversations knew it was illegal to do so, intent is not enough.

 

I. Maryland Wiretap

 

It is unlikely that Tripp will be found in violation of Md. Code Ann. § 10-401 et seq. (1998) Wiretapping and Electronic Surveillance (“Maryland Wiretap Act”).  Civil damages can be awarded under § 10-410 if it can be shown that § 10-402 was violated.  Although it is possible to show all other elements of this case, all other elements hinge on whether the interception was “wilful”.

This discussion will focus on violation of Maryland Wiretap Act by “‘willful’ interception”.  “[I]t is unlawful for any person to: (1) Wilfully intercept . . . any wire, oral, or electronic communication; . . . ” § 10-402(a).  There will also be a discussion as to whether consent to taping was involved.  Most of the discussion explores what “willful” means in Maryland, which is key to this case.

An intercept occured.  “‘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.” § 10-401(3).  A telephone conversation is a “wire communication” as defined within the Wiretap Act.  “‘Wire communication’ means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by aid of wire, cable, or other like connection. . . .” § 10-401(1)(i).  The facts indicate that Tripp “intercepted” her telephone conversations with Lewinsky by taping them with a tape recorder.

            There was no prior consent of all parties.  In Maryland, it is permissible to tape a telephone conversation only if all parties to the conversation consent.  “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. . . .”  § 10-402(c)(3).  Lewinsky did not consent to the taping, so the taping was not lawful.

            It is likely that Tripp was not “willful” in her interception.  Again, if the interception was not willful, then the Maryland Wiretap Act was not violated.  Benford v. American Broadcasting Co., 649 F.Supp. 9, 10 (D. Md. 1986) was the first case to interpret the meaning of the term “wilfully” in the context of the Wiretap Act.  The Benford  court adopted a definition of “wilfulness” from the federal wiretapping laws, upon which the Maryland law is based.  The court required the plaintiff to show that the defendant knowingly broke the law.

            In order for a person to violate the Wiretap Act, she must “wilfully” intercept a wire communication with another individual, or disclose a communication she knows was illegally intercepted.  The court states, “The term ‘wilfully,’ when used in the criminal context, means more than intentional or voluntary.  It denotes either an intentional violation or a reckless disregard of a known legal duty.”  Benford, 649 F.Supp. 10.  Maryland courts have held that it is incorrect to say that ignorance of the law is no excuse, or to say that the word “wilful” means “intentional” in this context.  Hawes v. Carberry, 653 A.2d 479 (Md. Ct. Spec. App. 1995).  In Hawes, the plaintiff failed to prove that the defendant had “wilfully intercepted” their conversation, the plaintiff was only able to show intent to intercept.

            In Hawes, a Virginia attorney was not assumed to have any knowledge of Maryland Wiretap Laws, so it is unlikely that a court will find that Tripp, a government employee with no legal training, was aware of the law.  However, if other evidence can be found to show that Tripp was aware that it was illegal to tape the conversations, Lewinsky will prevail.

            In Hawes, the appellant was a member of the Virginia Bar and was attempting to enforce a judgment against appellees.  When he visited their Maryland home, he tape recorded (i.e., intercepted) their conversation without appellees’ knowledge or consent.  The trial court ruled that this was a violation of the Wiretap Act, but the appellate court overturned the decision.  The court stated, “While appellees proved that appellant was a Virginia lawyer, it could not be legitimately inferred from this fact that he knew the wiretap law of all 50 states or even that he knew the relevant law in Maryland, or, for that matter, any other jurisdiction in the Washington metropolitan area.”  Id.

If Lewinsky proves that Tripp was aware that her actions were against the law, Lewinsky can bring a civil action against Tripp, because “Section 10-410 establishes civil liability for the violation of Section 10-402 and authorizes a private cause of action to recover damages.”  Benford v. American Broadcasting Co., 649 F.Supp. 9, 10 (D. Md. 1986).  Lewinsky can recover actual damages of not less than $100 a day for each day of violation or $1,000, whichever is higher,§ 10-410(a)(1), and reasonable attorney's fees and costs of litigation. § 10-410(a)(2).  If she can show that Tripp acted out of malice, she can also recover punitive damages. §§ 10-410(a)(3).

 

 

CONCLUSION

 

            While the case is clear that Tripp intercepted her telephone conversations with Lewinsky, we have no evidence that suggests that she knew her actions were against the Maryland Wiretap Act.  I recommend against bringing suit against Lewinsky unless new evidence is found that suggests that Tripp knew that she was violating the Maryland Wiretap Act.