http://www.delmarvanow.com/article/20090411/NEWS01/904110361/1002/rss
April 11, 2009
Pocomoke City blogger charged with wiretapping
By Jenny Hopkinson
Staff Writer
SNOW HILL -- A local blogger was charged with wiretapping after he
allegedly recorded a conversation between himself, his wife -- a City
Council candidate -- and Pocomoke City Mayor Michael McDermott and
later posted it on a Web site.
According to court documents, William Burke -- an auctioneer who
along with his wife, Stephanie Burke, publishes pocomoketattler.com
-- used a digital recorder March 27 to tape about 37 minutes of a
conversation with McDermott on the steps of Pocomoke City Hall. The
mayor told police he did not know the recording was being made and
didn't give Burke permission to tape the talk.
On March 29, McDermott filed a complaint with the Pocomoke City
Police Department, saying, "he had been made aware of an unauthorized
recording that had been made." Burke himself had sent a copy of the
recording to the Worcester County State's Attorney's Office and in an
attached e-mail stated he had recorded the conversation.
The recording was not posted to pocomoketattler.com until April 7 --
city election day. The attributed post links to a short audio clip of
a man saying, "Hey, you know what, I have a plan for you. Why don't
you move?" and states the speaker is McDermott.
Burke was charged with wiretapping two days later. If found guilty,
he could face a maximum penalty of five years in prison and a fine of
$10,000. Burke will go before a judge for a preliminary hearing May 7.
The Maryland Annotated Code states it is illegal to record a
conversation unless "all of the parties to the communication have
given prior consent."
University of Maryland Media Law Professor Deborah Nelson said there
is a lot of legal gray area with the situation since the recording
was made in a public area.
"The fact that (Burke) was in a public place may work in his favor,
but not necessarily," Nelson said.
The law is not clear about whether consent must be explicit or
implied before a recording can be made, Nelson said, meaning any
audio recordings in Maryland can be risky.
"He would have the expectation it was a private conversation," Nelson said.
A written opinion of the Maryland attorney general on wiretaps and
electronic surveillance explains that whether the person who was
unknowingly taped has a "reasonable expectation of privacy" is
relevant to the charges under the statute.
"Statements that a person 'knowingly expose(s) to the public' are not
made with a reasonable expectation of privacy and therefore are not
protected," the opinion reads, citing the 1997 Malpas v. State case
where the Maryland Court of Special Appeals found in favor of a man
who recorded a conversation between apartment-dwellers next door he
could clearly hear through the walls.
In a March 30 post to the Web site, Stephanie Burke described part of
the conversation that was "yelled at me by Mayor Mike McDermott on
the front steps of City Hall."
McDermott declined to comment about the case, and William Burke could
not be reached by press time.
The warrant was obtained on the same day a state's attorney's
investigation was opened into the District 4 election after a
complaint about balloting procedures was made by Stephanie Burke. She
lost the contest after only four of 178 absentee ballots were cast in
her favor.
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No enterprise is more likely to succeed than one concealed from the
enemy until it is ripe for execution. - Machiavelli, The Prince, 1521
Received on Sat Mar 02 2024 - 00:57:16 CST