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Reasonable Expectation of Publicity

It is unlawful, in Maryland, for any person to [w]ilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any . . .oral . . . communication[.] "Oral communication" means any conversation or words spoken to or by any person in private conversation. "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.

Maryland courts have subsequently characterized the difference in the wording between the State and federal definitions of “oral communication” as “slight” and have construed the phrase in the Maryland statute to incorporate the “reasonable expectation of privacy” standard applied under the federal law. Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff'd in relevant part, 342 Md. 363, 376, 676 A.2d 65 (1996); see also Maloas v. State, 116 Md. App. 69, 83-84, 695 A.2d 588 (1997); Hawes v. Carberry, 103 Md. App. 214, 220, 653 A.2d 479 (1995); Benford v. American Broadcasting Co., 649 F. Supp. 9, 11 (D. Md. 1986).

July 7, 2010 opinion of Maryland Attorney General to Delegate Samuel I. Rosenberg (the "Rosenberg Opinion") at 5 (pdf).

How could anyone possibly think that when someone confronts a total stranger in a public place, pulling a gun on him in the process, that is a "private conversation"? Isn't "revealed to an antagonistic total stranger" pretty much an opposite of "private"?

Our Asshat Lawyer of the Day, Harford County, Maryland prosecutor Joseph Cassilly (Radley Balko,, thinks this armed guy accosting a motorcyclist in a public place . . .

. . . was engaged in private conversation, such that the motorcyclist should be prosecuted for a felony for recording his words:

The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.

Nooo. The test is not whether officers can expect squadcar confessions to their partners or sweet nothings to their beat wives to remain private. Nor is the test whether "everything a police officer does on the job should be for public consumption." The test is whether this officer had a reasonable expectation of privacy when he told this motorcyclist to get off the motorcycle and identified himself as a state police officer.

Lots of cops don't like to be recorded doing their jobs. I get that. Lots of my clients don't like to be recorded doing their jobs either. But whether you're a cop or a . . . well, not a cop, when your "conversation" with a stranger starts with your drawing a gun on him, you can't reasonably expect that it'll be kept just between you and him.


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