Maryland state legislators are grappling with a difficult issue, trying to figure out how to update the state’s wiretap law to accommodate all of the changes created by widespread adoption of new technologies.

That’s complicated enough, but at the same time, another issue is lurking behind the wiretap law. It is a dark, frightening presence with new, even more difficult challenges.

Its initials are A.I.

The Maryland House of Delegates Judiciary Committee recently had a briefing on the wiretapping law, as lawmakers consider amending it when the 2026 session convenes next month.

Maryland law currently requires two-party consent, or more accurately, “all-party” consent. Everyone in a conversation must agree to it being recorded.

Maryland is one of just 10 states with that law, and the price for a violation is stiff. A person who records another without their permission could face up to five years in prison, up to a $10,000 fine, or both.

But the law was passed before the invention of the cellphone, and before the invention of the Ring doorbell, to name just two technologies that complicate enforcement.

And the way people use their video cameras to record so many interactions of modern life compound the problem.

David Gray, a professor at the University of Maryland law school who participated in the briefing, told lawmakers that if a doorbell camera captures video and audio of an alleged crime, the video can be admissible in court under the current law, but not the audio.

The same is true of cellphone recordings of crimes, such as a domestic violence victim using her cellphone to record her spouse’s abuse or bystanders recording misconduct by police officers, as in the George Floyd case.

“My understanding of the history of the law is that it was adopted at a time where video recording was relatively unavailable, and so it just wasn’t on the minds of the legislature at the time,” Gray explained, according to the a story by the news website Maryland Matters.

“You’re right to recognize that technology might have overtaken us, and trying to write that law now in our current technological environment,” Gray said. “I would not envy you or your staffers.”

According to Maryland Matters, Joyce King, chief counsel with the Frederick County State’s Attorney’s Office, made the argument for changing the law to remove two-party consent.

She told the committee that certain recordings should not need any consent, especially when they deal with domestic violence, child or elder abuse, or other violent crimes.

“Maryland is an outlier,” she said. “These cases are limited to crimes committed against a person, that the recording is not just to embarrass or to be salacious … not to capture your private conversations at the dinner table. It’s a material fact of a crime.”

But Baltimore City Public Defender Marguerite Lanaux said two-party consent provides privacy protection from “fabricated evidence” through artificial intelligence and audio manipulation that “helps prevent malicious actors from creating or editing recordings to frame individuals.”

That leads to the next weighty issue. The widespread adoption of artificial intelligence tools raises the question of whether in the near future any video or audio recording — no matter who consents to it — can be fully trusted.

AI deep fakes are getting more sophisticated all the time and becoming tougher to distinguish from a real recording.

When AI gets even more realistic, how will police tell what is evidence and what is a false accusation? How will prosecutors, defense lawyers, judges and jurors decide what they can trust?

As Gray said to the committee, technology is moving fast, almost too fast for the law to keep pace.

And yet the time is fast approaching when that law will be needed. The legislators need to get ready.

— The Frederick News-Post