KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com ****************************** Can you install audio and video in home to monitor nanny and others March 29, 2022 ************************** Can you install audio and video in home to monitor nanny and others *************************** Ken, A customer approached to us requesting to upgrade his video camera system for the house interior and exterior. We installed a camera system installation in 2020 just video recording and now he wants to record audio inside the house. He is divorced and have some issues with the ex-wife over the custody of the kids so he wants to upgrade the system to record 24Hrs audio and video for the interior cameras only. This customer sent me an opinion ruling from Massachusetts that held that child care workers did not have a right to expect privacy in someone's home and that "nanny cameras" recording audio and video were acceptable. Oral communication interception is illegal only when the person has an expectation of privacy. I know some states have restrictions about it, how about in PA? Name withheld ************************* Response ************************** You can check your state's law on audio and video devices on K&K's website at Alarm Law Issues / Audio and Video laws / state by state https://www.kirschenbaumesq.com/article/5704-2006-5704-exceptions-to-prohibition-of-interception-and-disclosure-of-communications [note: use this website as starting point only because not all statues may be up to date] You need to be very careful getting your information from an internet search because the search for use of nanny cams starts with a pretty bold statement that it would be legal in all states to use the nanny cam. I am not so confident that that is the case. In fact it appears that while video recording in non-private areas in the house [and elsewhere] may be legal, audio interception and recording in any area where privacy is expected is generally not legal. All states are either one or all person consent states; Pennsylvania is a one party state. In the above question an ex-husband wants audio - video interception and monitoring in his ex-wife's house. That isn't going to fly. He doesn't live there and he is not intending to record conversations he is a party to. Last time K&K updated its website the PA statutes had this specific provision: "(iv) the requirements of this subparagraph are met. If an oral interception otherwise authorized under this paragraph will take place in the home of a nonconsenting party, then, in addition to the requirements of subparagraph (ii), the interception shall not be conducted until an order is first obtained from the president judge, or his designee who shall also be a judge, of a court of common pleas, authorizing such in-home interception, based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order. No such order or affidavit shall be required where probable cause and exigent circumstances exist. For the purposes of this paragraph, an oral interception shall be deemed to take place in the home of a nonconsenting party only if both the consenting and nonconsenting parties are physically present in the home at the time of the interception." Of course there is a difference between installing the devices and using it illegally. You can likely install it as long as it's not in an obviously private area and there is no good reason a customer would be asking you for the device. Keep in mind that a nanny cam is a movable device that is typically sold retail and never installed by the seller of the device. That's not the case with a professionally installed hard wired camera with audio feature. Technology is continuing to develop to permit more and more interception and intrusion of privacy capability, so we are going to see more issues developing. Legislation lags far behind technology, so it will be interesting to see how the audio and video statutes evolve, but they likely will. Until the statutes target the seller and installer the legal issues and consequences will probably fall on the end user, not the alarm installer. The Commercial All in One and the Residential All in One clearly address this issue by warning the end user to comply with the law, and since you're not a lawyer and certainly not your customer's lawyer, you should not be opining on the law. ************************ To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** ALARM ARTICLES: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles updated daily ******************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our Email List / Email Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com ************************** Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
