Updated March 24 by Justin S. Kline, Esq.
Are you thinking about installing hidden cameras in your place of business? Many employers consider video and other surveillance key to keeping an honest and productive workplace. It keeps employees on the straight and narrow – no fingers in the till, no time clock funny business, no drinking or drugging on breaks. Many business owners and managers also record or review phone calls and emails from the office.
But employers must be careful not to go too far in their surveillance or they will risk being sued by an employee for an invasion of privacy under federal or state law. This article is an overview of the laws applicable to workplace surveillance – you should always talk to your own attorney to determine exactly what the law is in your state.
Electronic Surveillance Consent Requirements
This article will address the varying consent requirements under applicable federal and state law for electronic surveillance of third parties by private (i.e., non-law enforcement) parties. Specifically, it will address both Audio Surveillance and Video Surveillance. It will conclude with some recommendations about conducting such surveillance in the work place.
Audio Surveillance may be conducted in a number of ways. Conversations may be recorded over a land-line, on a mobile phone or in-person with a hidden recording device. Importantly, conversations may also be picked up by video-recording devices if the camera records sound as well as video.
The primary federal law governing audio surveillance by private parties is the Electronic Communications Privacy Act, 18 USC 2510, et seq. (“ECPA”). Unlike other federal statutes which deal with state actors, such as the Foreign Intelligence Surveillance Act (as amended by the USA PATRIOT Act), the ECPA protects individual privacy from the intrusions of other private individuals.
Title I of the Federal Electronic Communications Privacy Act of 1986 prohibits the intentional interception of any wire, oral or electronic communication. Oral communication is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
The principal exception to the federal law prohibition allows a private person to intercept an oral communication if the person is a party to that conversation or if one of the parties to the conversation has given consent. This exception is known as the “oneparty consent” rule.
The one-party consent rule, however, does not allow the person to violate state law. The federal law sets only minimum standards. Therefore, if a state law provides greater protections, then compliance with state law will be required in order to avoid liability.
A majority of the states and territories have adopted laws based on the federal standard. The states and territories requiring the consent of at least one party to a telephone conversation’s consent before an audio recording may legally be made are: Alabama; Alaska; Arizona; Arkansas; Colorado; Delaware; the District of Columbia; Georgia; Hawaii (allows one-party consent for audio recordings, but requires two-party consent if the recording device is located in a "private place"); Idaho; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Minnesota; Mississippi; Missouri; Nebraska; New Jersey; New Mexico; New York; North Carolina; North Dakota; Ohio; Oklahoma; Rhode Island; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; Wisconsin; and Wyoming.
Note that because the provisions of state consent statutes dealing with wireless communications often apply to “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature,” the requisite party consent is often likewise required to disclose the contents of text messages sent between wireless devices.
But 14 states require the consent of all parties to the conversation under most circumstances. You will sometimes hear these states referred to inaccurately as “two party consent” states. If there are more than two people involved in the conversation, all must consent to the recording.
These states are: California; Connecticut; Florida; Illinois; Maryland; Massachusetts; Michigan; Montana; Nevada (the Nevada supreme Court held that its statute requires two-party consent Lane v. Allstate ins. Co., 969 P.2d 938 (Nev. 1998)); New Hampshire; Oregon (for in-person communications); Pennsylvania; Vermont (which has no statute, but the state Supreme Court has ruled that the surreptitious recording of a Defendant in a conversation with police inside his residence violated his reasonable expectation of privacy); and Washington.
The Illinois State Supreme Court recently struck down as unconstitutional the Illinois allparty consent statute. People v. Clark, 2014 IL 115776 (March 20, 2014). However, it does not appear that the court’s analysis will extend to other state’s all-party consent laws. In Clark, the defendant recorded conversations in court between himself and an attorney representing the opposing party in a child support matter. Clark claimed he made the recordings to preserve the record of the case because there was no court reporter present and argued that he had a First Amendment right to do so. The Illinois statute at issue, 720 ILCS 5/14-2(a)(1)(A), prohibited “[K]knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercept[ing], retain[ing], or transcribe[ing] electronic communication unless he does so . . . with the consent of all of the parties to such conversation or electronic communication.”
The key to the result in Clark, however, was that the statute had been amended in 1994 to define “conversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added). The statute was struck down because the relevant section of the Illinois eavesdropping statute was overbroad. The court reasoned that, under the 1994 amendments, “the statute … essentially deems all conversations to be private and not subject to recording even if the participants themselves have no expectation of privacy… It criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private.”
The Illinois legislature has responded by passing new two-party consent legislation to address the court’s First Amendment concerns.
However, most states’ all-party consent laws do not suffer from the fatal defect in Illinois’ all-party consent law in Clark. For example, California Penal Code section 632 imposes criminal penalties on “[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication.
California law limits the definition of the term “confidential communication” to a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto,” and explicitly “excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded” (emphasis added).
Because California’s—and several other states’—all-party consent laws are narrowly focused on the protection of conversations under circumstances in which there is a reasonable expectation of privacy, they will not likely be deemed to be constitutionally overbroad if challenged in court.
Further, it is not always clear which law, state or federal, applies to specific situations. This depends on where the call originates, why the recording is being made and who places the call.
For example, the California Supreme Court held in Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (2006) that out-of-state businesses are prohibited from monitoring or recording their telephone calls with California residents, even if that conduct takes place in any of the states where only one party's consent is required to lawfully monitor or record a telephone call. Thus, California 's all-party consent law governs any calls between a company's location in a one-party consent state and customers located in California.
So, if you are in a state that allows one-party-consent recording and you call a party in a state that requires two-party consent and record the conversation surreptitiously (legal under federal law) the state with tougher laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of the federal statute. It is important to know your state law and the law in the state into which you call before you record surreptitiously.
Notwithstanding the foregoing, employers generally may monitor and even record their employees’ phone conversations with few restrictions. For example, employers may monitor calls with clients or customers for reasons of quality control. However, when the parties to the call are all in California, state law requires that they be informed that the conversation is recorded or monitored by either putting a beep tone on the line or playing a recorded message. (California Public Utilities Commission General Order 107B). Federal law, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. See Electronic Communications Privacy Act, 18 USC 2510, et seq.
Hidden surveillance cameras may help with the detection and prosecution of theft (both by employees and other third parties), vandalism, elder neglect and abuse, child abuse, harassment and stalking.
The permissibility of video surveillance will in most cases turn on whether the recording device records sound as well as images, as well as whether the taping is within an area where one has a “reasonable expectation of privacy”.
It is generally legal to use spy cameras to record video (without sound) in public places — including places of business, restaurants, hospitals, convenience stores and retail stores. If you are an employer or small business owner, it’s generally legal to use covert cameras in the workplace, without having to legally notify employees of the presence of hidden cameras.
However, recording should not be done in areas where employee’s have a reasonable expectation of privacy. California Labor Code section 435 expressly prohibits an employer from making any audio or video recording of an employee in a restroom, locker room, or other room designated for changing clothes, unless authorized by a court order.
The laws of 12 other states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.
Alabama, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, South Dakota and Utah also prohibit trespassing on private property to conduct surveillance of people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by a fine. In Maine, the privacy violation is a felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison. Several states have laws prohibiting the use of hidden cameras only in certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.
It is currently legal in every state to make a video-only (no sound) recording of nearly everything happening at your home, at any time, without informing anyone. The fact that the camera is hidden has no effect on this concept. However, you must still avoid recording in places where the nanny, babysitter or elder caregiver has a reasonable expectation of privacy. This includes the bathroom and likely bedroom if the caregiver lives with you.
If the camera records sound as well as video, then you must comply with the federal and state eavesdropping laws detailed above. If you are a parent of a minor child, and have a video recorder (with sound) set-up in your home to monitor a nanny or babysitter, then you may consent to the recording on behalf of your minor-child. In one- party consent states, the requirement to obtain the consent of one party to the communication is satisfied since the parent can consent on behalf of the child. And, of course, in two-party consent states, this means the parent only needs to get the consent of the nanny or babysitter (see discussion below).
As a result, it may be advisable to simply have nannies, babysitters, elder caregivers and other employees give consent to video surveillance with sound as part of the initial interview process. This may help to screen out those who have intentions to commit unacceptable behaviors in the workplace, and deter others who accept the job from doing so. In most instances, this screening and deterrence will be preferable to having a “gotcha” tape after the fact, but that will be there as a last resort as well.
This article is meant as a general introduction to the state of the law concerning electronic surveillance and its implications. This article is for general informational purposes only and does not constitute legal advice. You are strongly advised to seek legal advice from a lawyer in your state when you are confronted with a legal issue in this area..
© 2016 a1-hiddencamera.com. All Rights Reserved