What he is saying is that they can't be sued (or prosecuted) because the ACORN employees were taking notes and writing stuff down during the conversation and by taking notes they were themselves "recording" the conversation. Handwritten notes would be considered an interception of a conversation in accordance with the definitions in the MD Code. A pencil or a pen would be considered "mechanical, or other device" under the statute.
On top of that the conversation was not "private" because the door was open and other people were within earshot (such as the children making noise in the background).
My sense about the Acorn lawyer’s argument, based on reading this defense, is that he’ll suggest that the question is the invasion of privacy, and that the opposition cannot use that invasion of privacy that’s in question (the video) to make their case. A poisoned fruit type argument.
They’ll claim that their status as “counselors” is the only question before the judge, and that “counselors” do have an expectation of privacy.
Therefore, they’ll argue that the video, and any information gained from it is not allowable.
Depending on their judge, given that this is Maryland, they’ll get the video thrown out. That will rebound on them, though, because they’ll then not be able to prove anything regarding the intent of the 2 young people.
They know this. Their purpose, I believe, was simply to get into the media the “entrapment” label attached to this story, and also to intimidate the 2 young people and anyone else who, in the future, would attempt to do the same thing.