MS&K Alerts and Legal Updates

Do Audio/Video Surveillance Security Systems Violate Privacy Laws?

MS&K Intellectual Property & Technology Newsletter

December 2005

In the midst of growing concerns regarding homeland security, many businesses are considering ways to increase the safety of their premises.  As a result, more businesses are becoming interested in installing video surveillance security systems with audio recording capabilities.  Surveillance systems that record audio in public or semi-public buildings, however, may violate federal and state privacy laws and may incur both civil and criminal liability.


What Is the Current Law?


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." Some states have similar laws such as Title III of California's Omnibus Crime Control and Safe Streets Act of 1968.

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 a one-party 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 (as is the case in California) a state law provides greater protections, then compliance with state law will be required in order to avoid liability.

Almost all federal courts that have addressed the issue of whether silent video surveillance systems are legal have held that federal law does not prohibit silent video surveillance, i.e., video surveillance systems that do not record sound.  Those same courts, however, have implied that video surveillance systems that do record sound would violate federal law.

The main difference between federal law and a state law such as California's is that California has a two-party consent rule, which requires that all parties to a conversation consent to a recording for the recording to be legal.  Because certain states' laws provide greater protection than the federal minimum, businesses in those states must comply with state as well as federal law in order to avoid criminal and civil liability. 


What Are Private Conversations?


Both federal and California law prohibit the recording of only private oral conversations, meaning communications as to which participants have a reasonable expectation that no one is eavesdropping or recording the conversation. When the participants have consented to the interception of the conversation, the conversation has ceased to be private. 

Under some circumstances, the law may imply consent to the interception of a communication. The federal policy is to limit the situations in which interception is legal; thus, consent will not be implied routinely or casually. California law is less developed on the issue of implied consent. While the case law suggests that consent could be implied in some instances, California's strong policy against recording private conversations probably will confine those instances within narrow limits. The result may be the same under other states' laws.

The implied consent issue raises further questions regarding when a conversation should or should not be considered private.  Federal courts have been more willing than some state courts to hold that a conversation is not private if the conversation can be overheard by persons nearby.  On the other hand, for example, California courts have held that persons engaged in conversations do not lose their expectation of privacy simply because others nearby may overhear the conversations.

California courts also focus on whether the location in which the conversation takes place is public or private and have recognized that some buildings have both public and private spaces.  In determining if a space is public or private, courts look to the accessibility of the area.  Thus, the office building of a business typically would have private areas (such as personal offices), arguably private areas having limited access (such as copy rooms and kitchens), and public areas (such as reception and waiting rooms).  California and other state courts with similar laws would weigh the varying expectations of privacy in these types of locations.


Is There Any Way to Comply With These Laws and Still Add Audio Components to Video Security Surveillance Systems? 


Short of obtaining the formal written consent of all persons who will be subject to the audio/video surveillance security system, there exists no certain way to employ such a system without risk of civil and criminal liability under federal and state law.

Some businesses have considered posting signs in key locations to put persons on notice of audio recording.  Such signs arguably would suffice to imply consent if the signs are extremely prevalent throughout the office space and emphasize that audio/video surveillance is occurring in all relevant locations of the office at all times. The signs should leave no room for doubt that persons entering the building should expect to have their conversations recorded. The posting of such signs might technically be feasible, but ultimately impractical, because the signs might well offend clients, customers, or anyone else who may have business in the building.  Furthermore, the consent implied from these signs might not be valid with respect to persons compelled to choose between forgoing their privacy or forgoing their business.  Whether persons who choose to forgo their privacy under these circumstances have done so "voluntarily" is open to question.   

Perhaps acute security needs may justify the monitoring of communications in some areas.  However, given that the policy behind privacy laws is to protect privacy by limiting the situations in which recording communications is legal, it will be difficult to justify audio surveillance in more than a few select areas of most businesses, if at all.


Can Audio Surveillance Be Used to Monitor Security Personnel?


Federal courts have approved the limited monitoring of employees in certain areas under certain circumstances.  One area in which it may be legal to install a security surveillance system with audio capabilities might be at a security checkpoint at the entrance to a building.  The purpose behind monitoring conversations in this context arguably is to improve security by ensuring that security personnel properly perform their job functions.  Ensuring that security personnel follow proper security procedures is a very important business concern.  Additionally, there usually is little expectation that communications with personnel at a security checkpoint will be private.  Nevertheless, it would still be prudent to post conspicuous signs indicating the presence of an audio/video surveillance system in the checkpoint area.


What Is the Conclusion?


Silent video surveillance generally is permissible.  Given the stringent requirements of federal and many states' laws, however, it will be very difficult to operate an audio/video surveillance system legally in most areas of most businesses, including retail establishments and office environments.

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