Q: Would obtaining consent after recording an individual in a public setting with no expectation of privacy be illegalinMD?
I plan on doing a communications study in a local supermarket and I have already obtained permission to sit and observe the communications between a store clerk and the customers in the check-out line. I believe that interrupting the flow of the conversation would be detrimental to the results, and therefore, I am wondering whether or not I can record conversations via audio and then ask for consent to use the recording in my study after the fact. Is this legal in MD, where there is a two-party consent law? Or, would this fall in the category of being outside a reasonable expectation of privacy for the customer?
A: Reasonable expectation of privacy (or the lack thereof) is a concept that is only relevant to non-audio video recording of individuals. It would be safer to ask the customers to provide prior consent after telling them what you intend to use the recordings for- but as you note, this would also probably skew or make your study findings invalid. Perhaps you could simply take notes rather than record the interactions.
A: It is illegal to record audio of another without that person's consent in Maryland, so asking after the fact means you have to violate the law and risk prosecution to do so. The violation has nothing to do with whom you share it with, but with not obtaining consent in advance. A number of states do not make recording audio conversations illegal without the consent of both parties, so long as just one party to the conversation consents. I would suggest you identify those states and conduct your study in one of those jurisdiction. As for later use or publication of the surreptitiously (or undisclosed) video/audio recording, that is another matter, and may give rise to various invasion of privacy issues and civil claims based on that use. Obtaining consent in those circumstances, after-the-fact, with a proper release and license for use, would avoid those potential claims.
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