Apple Watches and the WireTap Act

This past September, Apple announced a new feature on its Apple Watch: a Live Rewind feature that allows users to review the last fifteen seconds of speech in their environment as a text transcript. This was announced together with another feature, Siri Recap, which listens to your conversations throughout the day, takes notes, and gives you written summaries to help you keep track of your day.

Both of these features are cutting edge, supremely useful, and … illegal in Maryland when there is a reasonable expectation of privacy. And for employers, the same statute that bars these consumer features also reaches the recording tools already running in the workplace—phone systems, meeting transcribers, and audio-capturing security cameras.

That’s because Maryland is an all-consent state. That means you can’t create an audio recording of a conversation where there is a reasonable expectation of privacy without consent from everyone involved. By way of contrast, New York is a one-party consent state, where only one participant to the conversation must agree (which is why, for example, Project Veritas can make their undercover videos.)

Live Rewind is unlawful because the Maryland Wiretap Act prohibits intercepting the communication, regardless of whether it is immediately deleted or even recorded at all: simply “acquiring” the contents of an electronic or oral communication is prohibited, whether that acquisition is by means of a recording device or simply by eavesdropping via some such device. (Importantly, the human ear is not considered a “device” under the Act, so plain, old-fashioned snooping with just your ears and no device, while frowned upon in civil society, does not violate the Act.)

Oral vs. Wire Communications

The Maryland Wiretap Act draws an important distinction between oral (i.e.,in-person) and wire (i.e., remote) communications.

While Maryland imposes a sort of “strict liability” on intercepting wire communications, i.e., you can be liable for violating the Act simply by intercepting a wire communication, you can only be liable for intercepting oral communications when the following two factors are met:

1. An individual has an actual, subjective expectation of privacy, as expressed by his actions: and
2. Such expectation is objectively reasonable in light of social norms.

For example, an employee speaking on an open sales floor or reciting information in a public lobby is not protected, for both reasons: there is no expectation of privacy, and it would not be reasonable to have one in a public-facing setting. Conversely, a closed-door personnel meeting or a one-on-one conversation in a private office satisfies both the subjective and objective expectation of privacy. Capturing that type of private conversation, whether via an Apple Watch or an AI notetaker, implicates the Act.

Apple’s assurances that it doesn’t “create audio recordings,” and that the data is processed, transcribed, and then deleted, are immaterial because the mere acquisition of the communications is unlawful.

Why the Stakes Are High for Employers

For employers, the risk of violating the Act extends beyond consumer gadgets like the Apple Watch to many tools being used in the workplace. Although employers may not have considered these implications, tools including AI notetakers for Zoom or Teams meetings, security cameras that capture audio, and recordings of company phone calls would require employers to obtain consent from the other parties before recording.

A violation of the Act is not a technicality. Unlawful interception is a felony in Maryland, carrying the possibility of imprisonment and a substantial fine. Beyond the criminal exposure, any party to the conversation—an employee, a customer, or a caller—can bring a civil suit and recover damages, including a statutory minimum per violation, punitive damages, and attorney's fees. And a recording made in violation of the Act is generally inadmissible in court, so a recording captured to protect the company can prove useless in the very dispute it was meant to resolve.

What Constitutes Consent?

The most obvious form of consent is actual, oral consent: asking the person on the line if they agree to being recorded, and hearing them say yes.

This is also the least likely scenario. A more common scenario involves a prerecorded message stating that “This call may be monitored or recorded for quality and training purposes,” or some variation thereof. As long as that notice reaches both parties on the line before the call begins, the parties’ choice to stay on the line constitutes consent. See Witcher v. Warden, Civ. Action No. 12-cv-3085-WDQ, 2014 WL 6471566 (D. Md. Nov. 17, 2014).

Conversely, deficient notice defeats consent. Having an AI notetaker on screen, for example, does not constitute notice when it can easily be missed (for small meetings, this likely wouldn’t be a concern). Neither does a signed handbook policy saying that company communications are not private. A better practice would be either to say out loud that the meeting is being recorded, or turn on the Zoom recording feature, which will make that announcement for you. And a handbook policy must explicitly address live telephone conversations; courts have held that couching it all under the umbrella of “communications,” or even “electronic communications,” may only include email, internet, and voicemail, but not live conversation. See Rassoull v. Maximus, Inc., Civ. Action No. 02-cv-0214-DKC, 2002 WL 34541544 (D. Md. Nov. 8, 2002).

What You Can Do Today

Here are six things to do today:

1. Get the caller's consent before recording begins. Use an automated announcement or clear verbal notice, and give callers an opportunity to decline recording or end the call. Don't assume that simply staying on the line always establishes consent; they may not have heard it.
2. Document your employees' consent. Obtain a signed acknowledgment specifically authorizing the recording of work-related calls. A vague handbook privacy provision may not be enough.
3. Automate the notice, don't rely on memory. Configure your phone system so the recording announcement plays before recording begins, every time. Don't leave compliance to an employee remembering to press the right button.
4. Account for interstate calls. When employees and callers are in different states, determining which recording laws apply can get complicated. Consider a company-wide all-party consent policy or procedures tailored to the jurisdictions involved.
5. Make sure your safeguards actually work. Test your recording systems periodically and maintain documentation of employee consent and your recording procedures. A good policy is only as useful as its implementation.
6. Audit your other recording tools, not just phones. AI notetakers, meeting-transcription apps, and audio-capturing security cameras all intercept communications under the Act. Confirm each one gives all-party notice and obtains consent before it captures audio. Disable audio on cameras where you don't need it.

If you need help auditing your company policies for possible Maryland Wiretap violations, or for any other employment-related matter, email me at aj@luchanskylaw.com and I’ll be happy to help.