Maryland Wiretapping and Electronic Surveillance Act (“WESA”)
MD. Code Cts. & Jud. Proc. § 10-401
CITATION:
2022 Maryland Statutes
Courts and Judicial Proceedings
Title 10 - Evidence
Subtitle 1 - Proof of Accounts and Records
Subtitle 2 - Public Statutes, Office Copies, and Official Certificate
Subtitle 3 - Motor Vehicle Laws
Subtitle 4 - Wiretapping and Electronic Surveillance
Subtitle 4A - Stored Wire and Electronic Communications and Transactional Records Access
Subtitle 4B - Pen Registers and Trap and Trace Devices
Subtitle 4 - WIRETAPPING AND ELECTRONIC SURVEILLANCE
Section 10-401 - Definitions
Section 10-402 - Interception of Communications Generally; Divulging Contents of Communications; Violations of Subtitle
Section 10-403 - Manufacture, Possession, or Sale of Intercepting Device
Section 10-404 - Forfeiture of Device
Section 10-405 - Admissibility of Evidence
Section 10-406 - Attorney General, State Prosecutor or State's Attorney May Apply for Order Authorizing Interception
Section 10-407 - Lawful Disclosure or Use of Contents of Communication
Section 10-408 - Ex Parte Order Authorizing Interception
Section 10-409 - Reports to Administrative Office of the Courts and to General Assembly
Section 10-410 - Civil Liability; Defense to Civil or Criminal Action
Section 10-411 - Registration of Intercepting Devices; Serial Number
Section 10-412 - Breaking and Entering, etc., to Place or Remove Equipment
Section 10-413 - Hostage and Barricade Situations
Section 10-414 - Obstruction, Impediment, or Prevention of Interception
§10–401. Definitions
As used in this subtitle the following terms have the meanings indicated:
(1) “Aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.
(2) “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.
(3) “Communications common carrier” means any person engaged as a common carrier for hire in the transmission of wire or electronic communications.
(4) “Contents”, when used with respect to any wire, oral, or electronic communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication.
(5) (i) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.
(ii) “Electronic communication” does not include:
1. Any wire or oral communication;
2. Any communication made through a tone–only paging device; or
3. Any communication from a tracking device.
(6) “Electronic communication service” means any service that provides to users of the service the ability to send or receive wire or electronic communications.
(7) “Electronic communications system” means any wire, radio, electromagnetic, photooptical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of electronic communications.
(8) “Electronic, mechanical, or other device” means any device or electronic communication other than:
(i) Any telephone or telegraph instrument, equipment or other facility for the transmission of electronic communications, or any component thereof, (a) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of the service and used in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties; or
(ii) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
(9) “Electronic storage” means:
(i) Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication; and
(ii) Any storage of a wire or electronic communication by an electronic communication service for purposes of backup protection of the communication.
(10) “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.
(11) “Investigative or law enforcement officer” means any officer of this State or a political subdivision of this State, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this subtitle, any sworn law enforcement officer of the federal government or of any other state or a political subdivision of another state, working with and under the direction of an investigative or law enforcement officer of this State or a political subdivision of this State, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.
(12) “Judge of competent jurisdiction” means a judge of any circuit court within the State having jurisdiction over the offense under investigation.
(13) (i) “Oral communication” means any conversation or words spoken to or by any person in private conversation.
(ii) “Oral communication” does not include any electronic communication.
(14) “Person” means any employee or agent of this State or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
(15) “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:
(i) Scrambled or encrypted;
(ii) Transmitted using modulation techniques the essential parameters of which have been withheld from the public with the intention of preserving the privacy of the communication; or
(iii) Except for tone–only paging device communications, transmitted over frequencies reserved for private use and licensed for private use under federal or State law.
(16) “Telephone solicitation theft” means conduct of a person that:
(i) Constitutes the offense of theft or attempted theft; and
(ii) Involves the use of a telephone to solicit the payment of money.
(17) “User” means any person or entity that:
(i) Uses an electronic communication service; and
(ii) Is duly authorized by the provider of the service to engage in that use.
(18) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.
§ 10-402. Interception of Communications Generally; Divulging Contents of Communications; Violations of Subtitle
(a) Except as otherwise specifically 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 electronic communication;
(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.
(b) Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.
(c) (1) (i) It is lawful under this subtitle for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.
(ii) 1. It is lawful under this subtitle for a provider of wire or electronic communication service, its officers, employees, and agents, landlords, custodians or other persons to provide information, facilities, or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees, or agents, landlord, custodian, or other specified person has been provided with a court order signed by the authorizing judge directing the provision of information, facilities, or technical assistance.
2. The order shall set forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specify the information, facilities, or technical assistance required. A provider of wire or electronic communication service, its officers, employees, or agents, or landlord, custodian, or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this subparagraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the State’s Attorney of the county where the device was used. Any such disclosure shall render the person liable for compensatory damages. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order under this subtitle.
(2) (i) This paragraph applies to an interception in which:
1. The investigative or law enforcement officer or other person is a party to the communication; or
2. One of the parties to the communication has given prior consent to the interception.
(ii) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence:
1. Of the commission of:
A. Murder;
B. Kidnapping;
C. Rape;
D. A sexual offense in the first or second degree;
E. Child abuse in the first or second degree;
F. Child pornography under § 11–207, § 11–208, or § 11–208.1 of the Criminal Law Article;
G. Gambling;
H. Robbery under § 3–402 or § 3–403 of the Criminal Law Article;
I. A felony under Title 6, Subtitle 1 of the Criminal Law Article;
J. Bribery;
K. Extortion;
L. Dealing in a controlled dangerous substance, including a violation of § 5–617 or § 5–619 of the Criminal Law Article;
M. A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the Insurance Article;
N. An offense relating to destructive devices under § 4–503 of the Criminal Law Article;
O. A human trafficking offense under Title 3, Subtitle 11 of the Criminal Law Article;
P. Sexual solicitation of a minor under § 3–324 of the Criminal Law Article;
Q. An offense relating to obstructing justice under § 9–302, § 9–303, or § 9–305 of the Criminal Law Article;
R. Sexual abuse of a minor under § 3–602 of the Criminal Law Article;
S. A theft scheme or continuing course of conduct under § 7–103(f) of the Criminal Law Article involving an aggregate value of property or services of at least $10,000;
T. Abuse or neglect of a vulnerable adult under § 3–604 or § 3–605 of the Criminal Law Article;
U. An offense relating to Medicaid fraud under §§ 8–509 through 8–515 of the Criminal Law Article;
V. An offense involving a firearm under § 5–134, § 5–136, § 5–138, § 5–140, § 5–141, or § 5–144 of the Public Safety Article; or
W. A conspiracy or solicitation to commit an offense listed in items A through V of this item; or
2. If:
A. A person has created a barricade situation; and
B. Probable cause exists for the investigative or law enforcement officer to believe a hostage or hostages may be involved.
(3) 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.
(4) (i) It is lawful under this subtitle for a law enforcement officer in the course of the officer’s regular duty to intercept an oral communication if:
1. The law enforcement officer initially lawfully detained a vehicle during a criminal investigation or for a traffic violation;
2. The law enforcement officer is a party to the oral communication;
3. The law enforcement officer has been identified as a law enforcement officer to the other parties to the oral communication prior to any interception;
4. The law enforcement officer informs all other parties to the communication of the interception at the beginning of the communication; and
5. The oral interception is being made as part of a video tape recording.
(ii) If all of the requirements of subparagraph (i) of this paragraph are met, an interception is lawful even if a person becomes a party to the communication following:
1. The identification required under subparagraph (i)3 of this paragraph; or
2. The informing of the parties required under subparagraph (i)4 of this paragraph.
(5) It is lawful under this subtitle for an officer, employee, or agent of a governmental emergency communications center to intercept a wire, oral, or electronic communication where the officer, agent, or employee is a party to a conversation concerning an emergency.
(6) (i) It is lawful under this subtitle for law enforcement personnel to utilize body wires to intercept oral communications in the course of a criminal investigation if there is reasonable cause to believe that a law enforcement officer’s safety may be in jeopardy.
(ii) Communications intercepted under this paragraph may not be recorded, and may not be used against the defendant in a criminal proceeding.
(7) It is lawful under this subtitle for a person:
(i) To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;
(ii) To intercept any radio communication that is transmitted:
1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
2. By any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public;
3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
4. By any marine or aeronautical communications system;
(iii) To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference; or
(iv) For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.
(8) It is lawful under this subtitle:
(i) To use a pen register or trap and trace device as defined under § 10–4B–01 of this title; or
(ii) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful, or abusive use of the service.
(9) It is lawful under this subtitle for a person to intercept a wire or electronic communication in the course of a law enforcement investigation of possible telephone solicitation theft if:
(i) The person is an investigative or law enforcement officer or is acting under the direction of an investigative or law enforcement officer; and
(ii) The person is a party to the communication and participates in the communication through the use of a telephone instrument.
(10) It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication in the course of a law enforcement investigation in order to provide evidence of the commission of vehicle theft if:
(i) The person is an investigative or law enforcement officer or is acting under the direction of an investigative or law enforcement officer; and
(ii) The device through which the interception is made has been placed within a vehicle by or at the direction of law enforcement personnel under circumstances in which it is thought that vehicle theft may occur.
(11) (i) 1. In this paragraph the following words have the meanings indicated.
2. “Body–worn digital recording device” means a device worn on the person of a law enforcement officer that is capable of recording video and intercepting oral communications.
3. “Electronic control device” has the meaning stated in § 4–109 of the Criminal Law Article.
(ii) It is lawful under this subtitle for a law enforcement officer in the course of the officer’s regular duty to intercept an oral communication with a body–worn digital recording device or an electronic control device capable of recording video and oral communications if:
1. The law enforcement officer is in uniform or prominently displaying the officer’s badge or other insignia;
2. The law enforcement officer is making reasonable efforts to conform to standards in accordance with § 3–511 of the Public Safety Article for the use of body–worn digital recording devices or electronic control devices capable of recording video and oral communications;
3. The law enforcement officer is a party to the oral communication;
4. Law enforcement notifies, as soon as is practicable, the individual that the individual is being recorded, unless it is unsafe, impractical, or impossible to do so; and
5. The oral interception is being made as part of a videotape or digital recording.
(iii) Failure to notify under subparagraph (ii)4 of this paragraph does not affect the admissibility in court of the recording if the failure to notify involved an individual who joined a discussion in progress for which proper notification was previously given.
(d) (1) Except as provided in paragraph (2) of this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.
(2) A person or entity providing electronic communication service to the public may divulge the contents of a communication:
(i) As otherwise authorized by federal or State law;
(ii) To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or
(iii) That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law enforcement agency.
(e) (1) Except as provided in paragraph (2) of this subsection or in subsection (f) of this section, a person who violates subsection (d) of this section is subject to a fine of not more than $10,000 or imprisonment for not more than 5 years, or both.
(2) If an offense is a first offense under paragraph (1) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense occurred is a radio communication that is not scrambled or encrypted, and:
(i) The communication is not the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offender is subject to a fine of not more than $1,000 or imprisonment for not more than 1 year, or both; or
(ii) The communication is the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offender is subject to a fine of not more than $500.
(3) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct which would otherwise be an offense under this subsection is not an offense under this subsection if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:
(i) To a broadcasting station for purposes of retransmission to the general public; or
(ii) As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.
(f) (1) A person who engages in conduct in violation of this subtitle is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:
(i) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of this subtitle is the private viewing of that communication, and is not for a tortious or illegal purpose, or for purposes of direct or indirect commercial advantage, or private commercial gain; or
(ii) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of this subtitle is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain.
(2) (i) The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person’s first offense under subsection (e)(1) of this section and the person has not been found liable in a prior civil action under § 10–410 of this subtitle.
(ii) In an action under this subsection, if the violation is a second or subsequent offense under subsection (e)(1) of this section or if the person has been found liable in a prior civil action under § 10–410 of this subtitle, the person is subject to a mandatory civil fine of not less than $500.
(3) The court may use any means within its authority to enforce an injunction issued under paragraph (2)(i) of this subsection, and shall impose a civil fine of not less than $500 for each violation of an injunction issued under paragraph (2)(i) of this subsection.
§ 10-403. Manufacture, Possession, or Sale of Intercepting Device
(a) Except as otherwise specifically provided in this subtitle, any person who manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, is guilty of a felony and is subject to imprisonment for not more than five years or a fine of not more than $10,000, or both.
(b) It is lawful under this section for:
(1) A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, a service provider, in the normal course of the business of providing that wire or electronic communication service to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.
(2) A person under contract with the United States, a state, a political subdivision of a state, or the District of Columbia, in the normal course of the activities of the United States, a state, a political subdivision thereof, or the District of Columbia, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications.
(3) An officer, agent, or employee of the United States in the normal course of his lawful activities to manufacture, assemble, possess or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.
(4) An officer, agent, or employee of a law enforcement agency of this State or a political subdivision of this State in the normal course of his lawful activities to manufacture, assemble, possess or sell any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, provided, however, that the particular officer, agent, or employee is specifically authorized by the chief administrator of the employer law enforcement agency to manufacture, assemble or possess the device for a particular law enforcement purpose and the device is registered in accordance with § 10-411 of this subtitle. However, any sale made under the authority of this paragraph may only be for the purpose of disposing of obsolete or surplus devices.
§ 10-404. Forfeiture of Device
Any electronic, mechanical, or other device used, manufactured, assembled, possessed, or sold, in violation of § 10-402 or § 10-403 of this subtitle may be seized and forfeited to the Department of State Police.
§ 10-405. Admissibility of Evidence
(a) Except as provided in subsection (b) of this section, whenever any wire, oral, or electronic communication has been intercepted, no part of the contents of the communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this subtitle.
(b) If any wire, oral, or electronic communication is intercepted in any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States, including the District of Columbia in accordance with the law of that jurisdiction, but that would be in violation of this subtitle if the interception was made in this State, the contents of the communication and evidence derived from the communication may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or any political subdivision of this State if:
(1) At least one of the parties to the communication was outside the State during the communication;
(2) The interception was not made as part of or in furtherance of an investigation conducted by or on behalf of law enforcement officials of this State; and
(3) All parties to the communication were co–conspirators in a crime of violence as defined in § 14–101 of the Criminal Law Article.
§ 10-406. Attorney General, State Prosecutor or State's Attorney May Apply for Order Authorizing Interception
(a) The Attorney General, State Prosecutor, or any State’s Attorney may apply to a judge of competent jurisdiction, and the judge, in accordance with the provisions of § 10–408 of this subtitle, may grant an order authorizing the interception of wire, oral, or electronic communications by investigative or law enforcement officers when the interception may provide or has provided evidence of the commission of:
(1) Murder;
(2) Kidnapping;
(3) Rape;
(4) A sexual offense in the first or second degree;
(5) Child abuse in the first or second degree;
(6) Child pornography under § 11–207, § 11–208, or § 11–208.1 of the Criminal Law Article;
(7) Gambling;
(8) Robbery under § 3–402 or § 3–403 of the Criminal Law Article;
(9) A felony under Title 6, Subtitle 1 of the Criminal Law Article;
(10) Bribery;
(11) Extortion;
(12) Dealing in a controlled dangerous substance, including a violation of § 5–617 or § 5–619 of the Criminal Law Article;
(13) A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the Insurance Article;
(14) An offense relating to destructive devices under § 4–503 of the Criminal Law Article;
(15) A human trafficking offense under Title 3, Subtitle 11 of the Criminal Law Article;
(16) Sexual solicitation of a minor under § 3–324 of the Criminal Law Article;
(17) An offense relating to obstructing justice under § 9–302, § 9–303, or § 9–305 of the Criminal Law Article;
(18) Sexual abuse of a minor under § 3–602 of the Criminal Law Article;
(19) A theft scheme or continuing course of conduct under § 7–103(f) of the Criminal Law Article involving an aggregate value of property or services of at least $10,000;
(20) Abuse or neglect of a vulnerable adult under § 3–604 or § 3–605 of the Criminal Law Article;
(21) An offense relating to Medicaid fraud under §§ 8–509 through 8–515 of the Criminal Law Article;
(22) An offense involving a firearm under § 5–134, § 5–136, § 5–138, § 5–140, § 5–141, or § 5–144 of the Public Safety Article; or
(23) A conspiracy or solicitation to commit an offense listed in items (1) through (22) of this subsection.
(b) No application or order shall be required if the interception is lawful under the provisions of § 10-402(c) of this subtitle.
§ 10-407. Lawful Disclosure or Use of Contents of Communication
(a) Any investigative or law enforcement officer who, by any means authorized by this subtitle, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer of any state, or any political subdivision of a state, the United States, or any territory, protectorate, or possession of the United States, including the District of Columbia, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(b) Any investigative or law enforcement officer who, by any means authorized by this subtitle, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom or an investigative or law enforcement officer of any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States, including the District of Columbia who obtains such knowledge by lawful disclosure may use the contents to the extent that the use is appropriate to the proper performance of his official duties.
(c) (1) Any person who has received, by any means authorized by this subtitle, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this subtitle, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States including the District of Columbia.
(2) Any person who has received any information concerning a wire, oral, or electronic communication intercepted in any state or any political subdivision of a state, the United States or any territory, protectorate, or possession of the United States, including the District of Columbia in accordance with the law of that jurisdiction, but that would be in violation of this subtitle if the interception was made in this State, or evidence derived from the communication, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this State if:
(i) At least one of the parties to the communication was outside the State during the communication;
(ii) The interception was not made as part of or in furtherance of an investigation conducted by or on behalf of law enforcement officials of this State; and
(iii) All parties to the communication were co-conspirators in a crime of violence as defined in § 14-101 of the Criminal Law Article.
(d) An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this subtitle, does not lose its privileged character.
(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b) of this section. The contents and any evidence derived therefrom may be used under subsection (c) of this section when authorized or approved by a judge of competent jurisdiction where the judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this subtitle. The application shall be made as soon as practicable.
(f) Any investigative or law enforcement officer of any state or political subdivision of a state, the United States, or any territory, protectorate, or possession of the United States, including the District of Columbia, who has lawfully received any information concerning a wire, oral, or electronic communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State pursuant to § 10-402(c)(2) of this subtitle to receive, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of this State or any political subdivision of this State.
§ 10-408. Ex Parte Order Authorizing Interception
(a) (1) Each application for an order authorizing the interception of a wire, oral, or electronic communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make the application. Each application shall include the following information:
(i) The identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
(ii) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including:
1. Details as to the particular offense that has been, is being, or is about to be committed;
2. Except as provided in paragraph (2) of this subsection, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
3. A particular description of the type of communications sought to be intercepted; and
4. The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(iii) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(iv) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe additional communications of the same type will occur thereafter;
(v) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each application; and
(vi) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain the results.
(2) (i) In the case of an application authorizing the interception of an oral communication, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted is not required if the application:
1. Is by an investigative or law enforcement officer;
2. Is approved by the Attorney General, the State Prosecutor, or a State’s Attorney;
3. Contains a full and complete statement as to why specification of the nature and location of the facilities from which or the place where the communication is to be intercepted is not practical; and
4. Identifies the individual committing the offense and whose communications are to be intercepted.
(ii) In the case of an application authorizing the interception of a wire or electronic communication, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted is not required if the application:
1. Is by an investigative or law enforcement officer;
2. Is approved by the Attorney General, the State Prosecutor, or a State’s Attorney;
3. Identifies the individual believed to be committing the offense and whose communications are to be intercepted;
4. Makes a showing that there is probable cause to believe that the individual’s actions could have the effect of thwarting interception from a specified facility; and
5. Specifies that interception will be limited to any period of time when the investigative or law enforcement officer has a reasonable, articulable belief that the individual identified in the application will be proximate to the communication device and will be using the communication device through which the communication will be transmitted.
(b) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
(c) (1) Except as provided in paragraph (5) of this subsection, on application, the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications within the territorial jurisdiction permitted under paragraphs (2) and (3) of this subsection, if the judge determines on the basis of the facts submitted by the applicant that:
(i) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in § 10–406 of this subtitle;
(ii) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
(iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(iv) There is probable cause for belief:
1. That the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by this person in accordance with subsection (a)(1) of this section; or
2. That the actions of the individual whose communications are to be intercepted could have the effect of thwarting an interception from a specified facility in accordance with subsection (a)(2) of this section.
(2) Except as provided in paragraphs (3) and (4) of this subsection, an ex parte order issued under paragraph (1) of this subsection may authorize the interception of wire, oral, or electronic communications only within the territorial jurisdiction of the court in which the application was filed.
(3) If an application for an ex parte order is made by the Attorney General, the State Prosecutor, or a State’s Attorney, an order issued under paragraph (1) of this subsection may authorize the interception of communications received or sent by a communication device anywhere within the State so as to permit the interception of the communications regardless of whether the communication device is physically located within the jurisdiction of the court in which the application was filed at the time of the interception. The application must allege that the offense being investigated may transpire in the jurisdiction of the court in which the application is filed.
(4) In accordance with this subsection, a judge of competent jurisdiction may authorize continued interception within the State, both within and outside the judge’s jurisdiction, if the original interception occurred within the judge’s jurisdiction.
(5) (i) In this paragraph, “legally protected health care” has the meaning stated in § 2–312 of the State Personnel and Pensions Article.
(ii) A judge may not issue an ex parte order under this section for the purpose of investigating or recovering evidence of actions related to legally protected health care, unless the acts forming the basis for the investigation or recovery of evidence would constitute a crime in this State.
(d) (1) Each order authorizing the interception of any wire, oral, or electronic communication shall specify:
(i) The identity of the person, if known or required under subsection (a)(2) of this section, whose communications are to be intercepted;
(ii) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, if known;
(iii) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(iv) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
(v) The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
(2) An order authorizing the interception of a wire, oral, or electronic communication, upon request of the applicant, shall direct that a provider of wire or electronic communication service, landlord, custodian or other person furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing the facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing facilities or assistance.
(e) (1) An order entered under this section may not authorize the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered.
(2) Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (a) of this section and the court making the findings required by subsection (c) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days.
(3) Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this subtitle, and must terminate upon attainment of the authorized objective, or in any event in 30 days.
(4) In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. An interception under this subtitle may be conducted in whole or in part by federal, State, or local government personnel, or by an individual operating under a contract with the State or a political subdivision of the State, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
(f) Whenever an order authorizing interception is entered pursuant to this subtitle, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the intervals the judge requires.
(g) (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. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in the way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They may not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (a) and (b) of § 10–407 of this subtitle for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (c) of § 10–407 of this subtitle.
(2) Applications made and orders granted under this subtitle shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. The applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
(3) Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge.
(4) Within a reasonable time, but not later than 90 days after the termination of the period of an order or extension of an order, the issuing judge shall cause to be served on the persons named in the order, and on the other parties to intercepted communications as the judge may determine in the judge’s discretion is in the interest of justice, an inventory which shall include notice of:
(i) The fact of the entry of the order;
(ii) The date of the entry and the period of authorized interception; and
(iii) The fact that during the period wire, oral, or electronic communications were or were not intercepted.
(5) The judge, upon the filing of a motion, shall make available to the person or the person’s counsel for inspection portions of the intercepted communications, applications, and orders pertaining to that person and the alleged crime.
(6) On an ex parte showing of good cause to the judge, the serving of the inventory required by this subsection may be postponed. The periods of postponement may not be longer than the authorizing judge deems necessary to achieve the purposes for which they were granted and in no event for longer than 30 days. No more than three periods of postponement may be granted. Any order issued extending the time in which the inventory notice is to be served must be under seal of the court and treated in the same manner as the order authorizing interception.
(h) The contents of any intercepted wire, oral, or electronic communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in the courts of this State unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized. Where no application or order is required under the provisions of this subtitle, each party, not less than 10 days before the trial, hearing, or proceeding, shall be furnished with information concerning when, where and how the interception took place and why no application or order was required. This 10-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving the information.
(i) (1) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this State or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:
(i) The communication was unlawfully intercepted;
(ii) The order of authorization under which it was intercepted is insufficient on its face, or was not obtained or issued in strict compliance with this subtitle; or
(iii) The interception was not made in conformity with the order of authorization.
(2) This motion shall be made in accordance with the Maryland Rules. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this subtitle. The judge, upon the filing of the motion by the aggrieved person, in his discretion may make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
(3) In addition to any other right to appeal, the State shall have the right to appeal from the denial of an application for an order of approval, if the prosecuting attorney shall certify to the judge or other official denying the application that the appeal is not taken for purposes of delay. The appeal shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted.
§ 10-409. Reports to Administrative Office of the Courts and to General Assembly
(a) Within 30 days after the expiration of the total period of an order, including each extension entered under § 10–408 of this subtitle, or within 30 days after denial of an application for an order or extension, the judge who passed the order or denied the application shall report to the Administrative Office of the Courts:
(1) The fact that an order or extension was applied for;
(2) The kind of order or extension applied for;
(3) The fact that the order or extension was granted as applied for, was modified, or was denied;
(4) The period of interceptions authorized by the order and the number and duration of any extensions of the order;
(5) The offense specified in the order or application or extension of an order;
(6) The identity of the applying investigative or law enforcement officer and agency making the application and the person authorizing the application; and
(7) The nature of the facilities from which or the place where communications were to be intercepted.
(b) In January of each year, the Attorney General, the State Prosecutor, and the State’s Attorneys shall report to the Administrative Office of the Courts:
(1) The information required by subsection (a) of this section with respect to each application for an order or extension made during the preceding calendar year;
(2) A general description of the interceptions made under the order or extension, including (i) the approximate nature and frequency of incriminating communications intercepted, (ii) the approximate nature and frequency of other communications intercepted, (iii) the approximate number of persons whose communications were intercepted, and (iv) the approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
(3) The number of arrests resulting from interceptions made under the order or extension and the offenses for which arrests were made;
(4) The number of trials resulting from the interceptions;
(5) The number of motions to suppress made with respect to the interceptions and the number granted or denied;
(6) The number of convictions resulting from the interceptions and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions; and
(7) The information required by paragraphs (2) through (6) of this subsection with respect to orders or extensions obtained in a preceding calendar year.
(c) Subject to § 2–1257 of the State Government Article, in February of each year, the State Court Administrator shall transmit to the General Assembly a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire or oral communications and the number of orders and extensions granted or denied during the preceding calendar year. The report shall include a summary and analysis of the data required to be filed with the Administrative Office by subsections (a) and (b) of this section. The State Court Administrator is authorized to issue binding regulations dealing with the content and form of the reports required to be filed by subsections (a) and (b) of this section.
§ 10-410. Civil Liability; Defense to Civil or Criminal Action
(a) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:
(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(2) Punitive damages; and
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
(b) A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.
§ 10-411. Registration of Intercepting Devices; Serial Number
(a) Law enforcement agencies in the State shall register with the Department of State Police all electronic, mechanical or other devices whose design renders them primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications which are owned by them or possessed by or in the control of the agency, their employees or agents. All such devices shall be registered within ten days from the date on which the devices came into the possession or control of the agency, their employees or agents.
(b) Information to be furnished with such registration shall include the name and address of the agency as well as a detailed description of each device registered and further information as the State Court Administrator may require.
(c) A serial number shall be issued for each device registered pursuant to this section, which number shall be affixed or indicated on the device in question.
§ 10-412. Breaking and Entering, etc., to Place or Remove Equipment
Any person who breaks and enters, enters under false pretenses, or trespasses, upon any premises with the intent to place, adjust or remove wiretapping or electronic surveillance or eavesdropping equipment without a court order is guilty of a felony and upon conviction may be imprisoned for not more than ten years.
§ 10-413. Hostage and Barricade Situations
(a) The Secretary of State Police or the commander of the law enforcement agency of any political subdivision of this State may designate one or more law enforcement officers as a hostage and barricade communications specialist.
(b) Each telephone company providing service to Maryland residents shall designate one or more individuals to provide liaison with law enforcement agencies for the purposes of this section.
(c) The supervising law enforcement officer, who has jurisdiction in any situation in which there is probable cause to believe that the criminal enterprise of hostage holding is occurring or that a person has barricaded himself within a structure and poses an immediate threat of physical injury to others, may order a telephone company, or a telephone company employee, officer, or director, or a hostage and barricade communications specialist to interrupt, reroute, divert, or otherwise control any telephone communications service involved in the hostage or barricade situation for the purpose of preventing telephone communication by a hostage holder or barricaded person with any person other than a law enforcement officer or a person authorized by the officer.
(d) A hostage and barricade communications specialist shall be ordered to act under subsection (c) of this section only if the telephone company providing service in the area has been contacted and requested to act under subsection (c) of this section and the telephone company:
(1) Declines to respond to the officer’s request because of a threat of physical injury to its employees; or
(2) Indicates when contacted that it will be unable to respond appropriately to the officer’s request within a reasonable time from the receipt of the request.
(e) The supervising law enforcement officer may give an order under subsection (c) of this section only after that supervising law enforcement officer has given written representation or oral representation of the hostage or barricade situation to the telephone company providing service to the area in which it is occurring. If an order is given on the basis of an oral representation, the oral representation shall be followed by a written confirmation of that representation within 48 hours of the order.
(f) Good faith reliance on an order by a supervising law enforcement officer who has the real or apparent authority to issue an order under this section shall constitute a complete defense to any action against a telephone company or a telephone company employee, officer, or director that arises out of attempts by the telephone company or the employee, officer, or director of the telephone company to comply with such an order.
(g) For the purposes of this section, “supervising law enforcement officer” means an officer:
(1) Having a rank at least equivalent to a lieutenant of the Department of State Police or higher; or
(2) In charge of one of the following:
(i) A State or county law enforcement agency;
(ii) A Department of State Police barracks; or
(iii) A district or region within a county or Baltimore City.
§ 10-414. Obstruction, Impediment, or Prevention of Interception
(a) A person who has knowledge that an investigative or law enforcement officer has been authorized or has applied for authorization under this subtitle to intercept wire, oral, or electronic communications, may not give notice or attempt to give notice of an authorized interception or pending application for authorization for interception to any other person in order to obstruct, impede or prevent such interception.
(b) A person who violates the provisions of subsection (a) of this section is guilty of a felony and, upon conviction, is subject to a fine not exceeding $10,000 or imprisonment not exceeding 5 years, or both.
Subtitle 4A - Stored Wire and Electronic Communications and Transactional Records Access
Section 10-4A-01 - Definitions
Section 10-4A-02 - Obtaining, Altering, or Preventing Authorized Access
Section 10-4A-03 - Divulging Contents of Communications Generally
Section 10-4A-04 - Disclosure of Information
Section 10-4A-05 - Backup Copies of Communications
Section 10-4A-06 - Delay in Giving Notices
Section 10-4A-07 - Reimbursement of Costs
Section 10-4A-08 - Civil Actions
§ 10-4A-01 - Definitions
(a) In this subtitle the following words have the meanings indicated.
(b) The following words have the meanings stated in § 10–401 of this title:
(1) Aggrieved person;
(2) Aural transfer;
(3) Communications common carrier;
(4) Contents;
(5) Electronic communication;
(6) Electronic communication service;
(7) Electronic communications system;
(8) Electronic, mechanical, or other device;
(9) Electronic storage;
(10) Intercept;
(11) Investigative or law enforcement officer;
(12) Judge of competent jurisdiction;
(13) Oral communication;
(14) Person;
(15) Readily accessible to the general public;
(16) User; and
(17) Wire communication.
(c) “Remote computing service” means the provision to the public of computer storage or processing services by means of an electronic communications system.
§ 10-4A-02 - Obtaining, Altering, or Preventing Authorized Access
(a) Except as provided in subsection (c) of this section, a person may not obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in an electronic communications system by:
(1) Intentionally accessing without authorization a facility through which an electronic communication service is provided; or
(2) Intentionally exceeding an authorization to access a facility through which an electronic communication service is provided.
(b) A person who violates the provisions of subsection (a) of this section is subject to the following penalties:
(1) If the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain:
(i) For a first offense, a fine of not more than $250,000 or imprisonment for not more than 1 year, or both; and
(ii) For a second or subsequent offense, a fine of not more than $250,000 or imprisonment for not more than 2 years, or both; or
(2) In any other case, a fine of not more than $5,000 or imprisonment for not more than 6 months, or both.
(c) Subsection (a) of this section does not apply to conduct authorized:
(1) By the person or entity providing a wire or electronic communications service;
(2) By a user of a wire or electronic communications service with respect to a communication of or intended for that user; or
(3) Under the provisions of this subtitle.
§ 10-4A-03 - Divulging Contents of Communications Generally
(a) (1) Except as provided in subsection (b) of this section, a person or entity providing an electronic communication service to the public may not knowingly divulge to any other person or entity the contents of a communication while the communication is in electronic storage by that service.
(2) Except as provided in subsection (b) of this section, a person or entity providing remote computing service to the public may not knowingly divulge to any other person or entity the contents of any communication which is carried or maintained on that service:
(i) On behalf of, and received by means of electronic transmission from, or created by means of computer processing of communications received by means of electronic transmission from, a subscriber or customer of the service; and
(ii) Solely for the purpose of providing storage or computer processing services to a subscriber or customer, if the provider is not authorized to access the contents of any communications for purposes of providing any services other than storage or computer processing.
(b) A person or entity may divulge the contents of a communication:
(1) To an addressee or intended recipient of the communication or an agent of the addressee or intended recipient;
(2) If authorized under the provisions of this subtitle;
(3) With the lawful consent of the originator or an addressee or intended recipient of the communication, or the subscriber in the case of remote computing service;
(4) To a person employed or authorized or whose facilities are used to forward the communication to its destination;
(5) If necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; or
(6) To a law enforcement agency, if the contents:
(i) Were inadvertently obtained by the service provider; and
(ii) Appear to pertain to the commission of a crime.
§ 10-4A-04 - Disclosure of Information
(a) An investigative or law enforcement officer may require a provider of wire or electronic communication service to disclose the contents of wire or electronic communication that is in electronic storage in a wire or electronic communications system only in accordance with a search warrant issued by a court of competent jurisdiction.
(b) (1) (i) In this subsection, “record or other information” includes name, address, local and long distance telephone connection records, or records of session times and durations, length of service (including start date) and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service, including any credit card or bank account number.
(ii) “Record or other information” does not include the contents of communications to which subsection (a) of this section applies.
(2) (i) Except as provided in subparagraph (ii) of this paragraph, a provider of electronic communications service or remote computing service may disclose a record or other information pertaining to a subscriber to or a customer of the service to any person other than an investigative or law enforcement officer.
(ii) A provider of electronic communications service or remote computing service shall disclose a record or other information pertaining to a subscriber to or a customer of the service to an investigative or law enforcement officer only if the officer:
1. Uses a subpoena issued by a court of competent jurisdiction, a State grand jury subpoena, or a subpoena authorized under § 15–108 of the Criminal Procedure Article;
2. Obtains a warrant from a court of competent jurisdiction;
3. Obtains a court order requiring the disclosure under subsection (c) of this section; or
4. Has the consent of the subscriber or customer to the disclosure.
(3) An investigative or law enforcement officer receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
(c) (1) A court of competent jurisdiction may issue an order requiring disclosure under subsection (b) of this section only if the investigative or law enforcement officer shows that there is reason to believe the records or other information sought are relevant to a legitimate law enforcement inquiry.
(2) A court issuing an order under this section may quash or modify the order, on a motion made promptly by the service provider, if the information or records requested are unusually voluminous in nature or if compliance with the order otherwise would cause an undue burden on the provider.
(d) Nothing in this subtitle may be construed as creating a cause of action against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or certification under this subtitle.
§ 10-4A-05 - Backup Copies of Communications
(a) (1) A subpoena or court order issued under § 10-4A-04 of this subtitle may include a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communications sought in order to preserve those communications. Without notifying the subscriber or customer of the subpoena or court order, the service provider shall create a backup copy as soon as practicable consistent with the provider’s regular business practices and shall confirm to the governmental entity that the backup copy has been made. The service provider shall create a backup copy under this subsection within 24 hours after the day on which the service provider receives the subpoena or court order.
(2) Except as provided in § 10-4A-06 of this subtitle, the investigative or law enforcement officer shall give notice to the subscriber or customer within 3 days after the day on which the governmental entity receives confirmation that a backup copy has been made under paragraph (1) of this subsection.
(3) The service provider may not destroy the backup copy until the later of:
(i) The delivery of the information; or
(ii) The resolution of any proceedings, including appeals of any proceedings, concerning a subpoena or court order issued under § 10-4A-04 of this subtitle.
(4) The service provider shall release the backup copy to the requesting investigative or law enforcement officer no sooner than 14 days after the day on which the officer gives notice to the subscriber or customer, if the service provider:
(i) Has not received notice from the subscriber or customer that the subscriber or customer has challenged the officer’s request; and
(ii) Has not initiated proceedings to challenge the officer’s request.
(5) (i) An investigative or law enforcement officer may seek to require the creation of a backup copy under subsection (a)(1) of this section if, in the officer’s sole discretion, the officer determines that there is reason to believe that notification to the subscriber or customer under § 10-4A-04 of this subtitle of the existence of the subpoena or court order may result in destruction of or tampering with evidence.
(ii) A determination under subparagraph (i) of this paragraph is not subject to challenge by the subscriber or customer or service provider.
(b) (1) Within 14 days after a subscriber or customer receives notice from an investigative or law enforcement officer under subsection (a)(2) of this section, the subscriber or customer may file a motion to quash the subpoena or vacate the court order. The subscriber or customer shall serve a copy of the motion on the investigative or law enforcement officer and give written notice of the challenge to the service provider. A motion to vacate a court order shall be filed in the court that issued the order. A motion to quash a subpoena shall be filed in the appropriate court. A motion or application under this subsection shall contain an affidavit or sworn statement stating:
(i) That the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for the applicant have been sought; and
(ii) The applicant’s reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this chapter in some other respect.
(2) The applicant shall serve a copy of the motion or application on the investigative or law enforcement officer in accordance with the Maryland Rules.
(3) (i) If the court finds that the applicant has complied with paragraphs (1) and (2) of this subsection, the court shall order the investigative or law enforcement officer to file a sworn response, which may be filed in camera if the investigative or law enforcement officer includes in the response the reasons which make an in camera review appropriate.
(ii) If the court is unable to determine the motion or application on the basis of the parties’ initial allegations and response, the court may conduct additional proceedings as it deems appropriate.
(iii) All such proceedings shall be completed and the motion or application decided as soon as practicable after the filing of the investigative or law enforcement officer’s response.
(4) (i) If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the investigative or law enforcement officer are maintained, or that there is a reason to believe that the law enforcement inquiry is legitimate and that the communications sought are relevant to that inquiry, the court shall deny the motion or application and order the subpoena or court order to be enforced.
(ii) If the court finds that the applicant is the subscriber or customer for whom the communications sought by the investigative or law enforcement officer are maintained, and that there is no reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of this subtitle, the court shall order the subpoena to be quashed or the court order to be vacated.
(5) A court order denying a motion or application under this subsection is not a final order and no interlocutory appeal may be taken by the customer.
§ 10-4A-06 - Delay in Giving Notices
(a) (1) In this section the following words have the meanings indicated.
(2) “Adverse result” means:
(i) Endangering the life or physical safety of an individual;
(ii) Flight from prosecution;
(iii) Destruction of or tampering with evidence;
(iv) Intimidation of potential witnesses; or
(v) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(3) “Supervisory official” means:
(i) The Secretary or Deputy Secretary of State Police;
(ii) The chief of police, deputy chief of police, or equivalent official of a law enforcement agency of any political subdivision of the State;
(iii) The Attorney General of the State or a Deputy Attorney General;
(iv) The State Prosecutor or Deputy State Prosecutor; or
(v) A State’s Attorney or Deputy State’s Attorney.
(b) An investigative or law enforcement officer acting under § 10–4A–04 of this subtitle may:
(1) If a court order is sought, include in the application a request for an order delaying the notification required under § 10–4A–05 of this subtitle for a period not to exceed 90 days, which the court shall grant, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result; or
(2) If a subpoena issued by a court of competent jurisdiction or a grand jury subpoena is obtained, delay the notification required under § 10–4A–05 of this subtitle for a period not to exceed 90 days, upon the execution of a written certification to a court of competent jurisdiction by a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result.
(c) The investigative or law enforcement officer shall maintain a true copy of a certification executed under subsection (b)(2) of this section.
(d) Extensions of a delay in notification may be granted by the court upon application or by certification by a supervisory official under subsection (b) of this section. An extension may not exceed 90 days.
(e) Upon expiration of the period of a delay of notification under subsection (b) or (d) of this section, the investigative or law enforcement officer shall serve upon, or deliver by registered or first–class mail, to the customer or subscriber a copy of the process or request together with a notice that:
(1) States with reasonable specificity the nature of the law enforcement inquiry; and
(2) Informs the customer or subscriber:
(i) That information maintained for the customer or subscriber by the service provider named in the process or request was supplied to or requested by that investigative or law enforcement officer and the date on which the information was supplied or the request was made;
(ii) That notification of the customer or subscriber was delayed;
(iii) Of the identity of the investigative or law enforcement officer or court that made the certification or determination authorizing the delay; and
(iv) Of the statutory authority for the delay.
(f) If notice to the subscriber is not required under § 10–4A–04(b)(1) of this subtitle or if notice is delayed under subsection (b) or (d) of this section, an investigative or law enforcement officer acting under § 10–4A–04 of this subtitle may apply to a court for an order requiring a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter an order under this subsection if the court determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will have an adverse result.
§ 10-4A-07 - Reimbursement of Costs
(a) Except as otherwise provided in subsection (c) of this section, an investigative or law enforcement officer obtaining the contents of communications, records, or other information under § 10-4A-03, § 10-4A-04, or § 10-4A-05 of this subtitle shall pay to the person or entity assembling or providing the information a fee for reimbursement for costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. Reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service in which the information may be stored.
(b) The amount of the fee authorized under subsection (a) of this section shall be mutually agreed upon by the investigative or law enforcement officer and the person or entity providing the information, or, in the absence of agreement, shall be determined by the court which issued the order for production of the information or the court in which a criminal prosecution relating to the information would be brought, if no court order was issued for production of the information.
(c) The requirement of subsection (a) of this section does not apply with respect to records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings obtained under § 10-4A-04 of this subtitle. The court may, however, order a payment described in subsection (a) of this section if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider.
§ 10-4A-08 - Civil Actions
(a) Except as provided in § 10–4A–04(d) of this subtitle, a provider of electronic communication service, subscriber, or customer aggrieved by a knowing or intentional violation of this subtitle may recover appropriate relief in a civil action against the person or entity that engaged in the violation.
(b) In a civil action under this section, appropriate relief includes:
(1) Appropriate preliminary and other equitable or declaratory relief;
(2) Damages under subsection (c) of this section; and
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
(c) The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than $1,000.
(d) A good faith reliance on any of the following is a complete defense to any civil or criminal action brought under this subtitle or any other State law:
(1) A court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization; or
(2) A good faith determination that § 10–402(d) of this title permitted the conduct that is the subject of the action.
(e) A civil action under this section shall be filed within 2 years after the day on which the claimant first discovered or had a reasonable opportunity to discover the violation.
Subtitle 4B - Pen Registers and Trap and Trace Devices
Section 10-4B-01 - Definitions
Section 10-4B-02 - Installation and Use Generally
Section 10-4B-03 - Application for Order to Install and Use
Section 10-4B-04 - Order Authorizing Installation and Use
Section 10-4B-05 - Assistance to Investigative or Law Enforcement Officer or Agency
§ 10-4B-01 - Definitions
(a) In this subtitle the following words have the meanings indicated.
(b) “Court of competent jurisdiction” means any circuit court having jurisdiction over the crime being investigated regardless of the location of the instrument or process from which a wire or electronic communication is transmitted or received.
(c) (1) “Pen register” means a device or process that records and decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.
(2) “Pen register” does not include any device or process used:
(i) By a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of its business; or
(ii) To obtain the content of a communication.
(d) (1) “Trap and trace device” means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.
(2) “Trap and trace device” does not include a device or process used to obtain the content of a communication.
(e) “Wire communication”, “electronic communication”, and “electronic communication service” have the meanings stated in § 10-401 of this title.
§ 10-4B-02 - Installation and Use Generally
(a) Except as provided in subsection (b) of this section, a person may not install or use a pen register or a trap and trace device without first obtaining a court order under § 10-4B-04 of this subtitle.
(b) Subsection (a) of this section does not apply to the use of a pen register or a trap and trace device by a provider of wire or electronic communication service:
(1) Relating to the operation, maintenance, and testing of a wire or electronic service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; or
(2) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful, or abusive use of service, or with the consent of the user of that service.
(c) A person who violates subsection (a) of this section, upon conviction, is subject to a fine not exceeding $5,000 or imprisonment not exceeding 1 year, or both.
§ 10-4B-03 - Application for Order to Install and Use
(a) An investigative or law enforcement officer may make application for an order or an extension of an order under § 10-4B-04 of this subtitle authorizing or approving the installation and use of a pen register or a trap and trace device, in writing, under oath or equivalent affirmation, to a court of competent jurisdiction of this State.
(b) An application under subsection (a) of this section shall include:
(1) The identity of the State law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and
(2) A statement under oath by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
§ 10-4B-04 - Order Authorizing Installation and Use
(a) (1) Upon an application made under § 10-4B-03 of this subtitle, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.
(2) On service, an order issued under paragraph (1) of this subsection shall apply to any person providing wire or electronic communication service whose assistance may facilitate the execution of the order.
(b) An order issued under this section shall:
(1) Specify the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;
(2) Specify the identity, if known, of the person who is the subject of the criminal investigation;
(3) Specify the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of a trap and trace device, the geographic limits of the trap and trace order;
(4) Contain a description of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and
(5) Direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under § 10-4B-05 of this subtitle.
(c) (1) An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days.
(2) Extensions of an order issued under this section may be granted upon a new application for an order under § 10-4B-03 of this subtitle and upon the judicial finding required under subsection (a) of this section. An extension may not exceed 60 days.
(d) An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
(1) The order be sealed until further order of the court; and
(2) The person owning or leasing the line to which the pen register or a trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
§ 10-4B-05 - Assistance to Investigative or Law Enforcement Officer or Agency
(a) Upon the request of an investigative or law enforcement officer of a law enforcement agency authorized to install and use a pen register under this subtitle, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer with all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person ordered by the court accords the party with respect to whom the installation and use is to take place, if such assistance is directed by a court order under § 10-4B-04(b)(5) of this subtitle.
(b) Upon the request of an officer of a law enforcement agency authorized to receive the results of a trap and trace device under this subtitle, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person ordered by the court accords the party with respect to whom the installation and use is to take place, if the installation and assistance is directed by a court order under § 10-4B-04(b)(5) of this subtitle. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order.
(c) A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance under this section shall be compensated for reasonable expenses incurred in providing the facilities and assistance.
(d) Nothing in this subtitle may be construed as creating a cause of action against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under §§ 10-4B-02 through 10-4B-05 of this subtitle.
(e) A good faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under §§ 10-4B-02 through 10-4B-05 of this subtitle or under any other law.
For more information, see here: https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=gcj§ion=10-401&enactments=False&archived=False
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