As was widely reported, Governor Hogan announced in the wake of the Freddie Gray tragedy and unrest in Baltimore, that he would sign into law a statute recently passed by the Maryland legislature specifically authorizing the use of body cameras by police. The use of such cameras in other states has been a matter of some controversy over privacy concerns, and some Maryland jurisdictions had reportedly already obtained the technology. This is what the new law, enrolled as House Bill 533, provides.
The bill defines a “body-worn digital recording device” as “a device worn on the person of a law enforcement officer that is capable of recording video and intercepting oral communication.” It refers also to an “electronic control device” which apparently can also do such recording, which include a taser or “portable device designed as a weapon capable of injuring immobilizing and inflicting pain on an individual by discharging electrical current.” Subject to the conditions of the remainder of the bill, the new Courts Article section provides that “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 one of these devices.
The law then sets forth conditions under which such recording is lawful. It requires that the officer is in uniform or prominently displaying a badge. It requires that the officer comply with standards, to be adopted pursuant to a new provision of the Public Safety law, for use of these devices. The officer must also be a party to the oral communication, and must notify the individual as soon as possible (unless it is unsafe, impractical or impossible to do so) that the individual is being recorded. The oral recording must also be made as part of a videotape or digital recording. The law is clearly an exception to Maryland’s wiretap laws, which generally require (subject to exceptions) that both parties to an oral conversation consent to it being recorded.
The bill provides under the Public Safety Article that the Maryland Police Training Commission (MPTC) by January 1, 2016 come up with a published policy for the issuance and use of body-worn cameras, including a host of subjects including when recording is mandatory or prohibited, testing procedures on the equipment, and review, use and retention of recordings. It also establishes a Commission made up of legislators, law enforcement representatives, attorneys, and other groups to come up with recommendations to the MPTC by October 1, 2015 for best practices for use of body cameras by law enforcement. Test programs are authorized that are not subject to these forthcoming procedures. It will be interesting to see what policies are adopted to try to balance the purpose of such devices with the public’s privacy interests.